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Pagination  It  as  follon:  [iHx,  [l]-180,  180a-180d,  [I8l]-3M, 
3S«a,  [355H17  p. 


TM*  Mrni  la  fSmad  at  ttw  rMhMlion  raMe  chadNd  batow  / 

w  wwttttfvffn  wt  ttiRiv  ■ti  miJi  OS  rvouciton  hiqw|iW  cfosssou** 


lOx 


14X 


Ifec 


22x 


12x 


16x 


2flx 


a«x 


28x 


32x 


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of  the  original  copy  and  in  keeping  with  the 
filming  convact  apecif icetiena. 


Lea  imagaa  auivantea  ont  *t*  reproduites  ave?  la 
plua  grand  toin,  compta  tenu  de  la  condition  at 
de  la  nettet*  de  I'eaemplaira  film*,  et  en 
conformit*  avec  lea  eonditiort*  du  contrat  da 
filmago. 


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The  laat  recorded  frame  on  eech  microfiche 
shall  contain  the  symbol  -^  (meening  "CON- 
TINUED"!, or  the  symbol  V  (meaning  "END"). 
whichowar  appliaa. 

Mapa.  plates,  chaas.  etc..  mey  be  filmed  at 
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entirely  included  in  one  axposure  ere  filmed 
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right  and  top  to  bottom,  as  many  frames  as 
required.  The  following  diagrams  illustrate  the 
method: 


Lee  exemplairea  originaux  dont  la  couvarture  en 
pepier  est  ImprimOe  sent  filmes  en  eommencant 
par  le  premier  plet  et  en  terminent  soit  par  la 
derniOre  page  qui  comporte  une  empreinte 
d'Impreaaion  ou  d'illuauation.  soit  par  le  second 
plat,  selon  la  eas.  Toua  lea  autres  exempiairea 
originaux  sont  fllm*s  en  eommencant  par  la 
premi*re  pege  qui  compirte  une  empreinte 
d'impreesion  ou  d'il.uatration  et  en  terminant  par 
la  derni*ro  pag*  qui  cempono  uno  tall* 
ompraint*. 

Un  dee  symbolas  suivants  apparaitra  sur  la 
derni*re  image  de  cheque  microfiche,  selon  la 
cas:  le  symbolo  -^  signifia  "A  SUIVRE".  la 
symbolo  V  aignifia  "FIN". 

Lea  cartaa.  planches,  tableaux,  etc..  peuvent  etre 
f ilm*s  *  dea  Mux  de  r*duction  dif fOrents. 
Lorsque  le  document  est  trop  grand  pour  *tre 
reproduit  en  un  seul  clich*.  il  est  film*  *  partir 
de  I'angle  sup*rieur  geuche.  de  geuche  *  droite. 
et  de  haut  an  baa.  en  prenant  le  nombre 
d'imagea  nbcaasaire.  Lea  diagrammaa  suivants 
illuatront  la  mdthodo. 


1 


'i^w4dUi»*'  - 


•••CtOCOfr  RfSOlUTION  TBT  CHART 

(ANSI  and  ISO  TEST  CHART  No.  2) 


^    /APPLIED  IIVMGE 


i  "53  Eost  Main  Street 

Rochester.  New  York        14609      uSA 

(716)  482  -  0300  -  Ptione 

(716)   288 -5989 -Fox 


ELEMENTS  OF  POLITICAL  SCIENCE 


ELEMENTS  OF 

POLITICAL    SCIENCE 


J 

n 

4 


BY 


STEPflEN   LEACOCK,  B.A.,  Ph.D. 

JKAD  OF  THK  DKI'AKTMKNT  «)F  KilONOMir-g  AND  POUTIOAb 

ik;icmck,  mcoill  uxivkhsi'iv  momi-ukal 


UEVISED  EDITloy 


BOSTON,  NEW  YORK,  AND  CHICAGO 

HOUGHTON   MIFFLIN  COMPANY 

<X!bt  miti$itt  ^ttii  CambnDge 


J 


383068 


COFYRIGIIT,   tqrfi  AND  I9IJ,  BY   STtl-IIKN  LBACOCR 
ALL  mOIITS   HESBMVBD 


CONTENTS 


PART  I.  — THE  NATITKE  OP  THE  STATE 

L    POUTICAL  SCIENCK,  THE  ThROKY  OK  THE  StATE 

1.  Definition  and  Scope  of  Political  Science      ....  3 

2.  Relation  to  Other  Sciences 6 

.'I.  Meaning  of  the  Stole ;  iu  EiWDtial  Attribute*    .    .  12 

4.  The    Distinction    between   State,  Society,   Oorern- 

ment,  and  Nation 15 

5.  The  State  and  a  Coniinon  Faith      ......  19 

6.  The  Ideal  State 20 

II.  The  Oriqik  or  the  State;  Fallacious  Theobies 

1.  Theory  of  the  Social  Contract 22 

2.  Applicttion  made  of  the  Theory  by  Hobbes,  Locke, 

and  Ronweau 27 

3.  Criticism  of  the  Theory 31 

4.  The  Theory  of  Divine  Origin ,'J4 

.').  The  Theory  of  Force 35 

III.  The  True  Orioin  or  the  .Statx 

1.  The  Historical  or  Evolutionary  View  of  the  Stote  41 

2.  The  Patriarchal  and  Matriarchal  Theories   ....  J2 

3.  Course  of  Development :  the  Aristotelian  Cycle  40 

4.  Military  and  Erronumic  Factors ^ 

5.  Some  Oeneral  Features  of  Political  Evi      lion  4g 

IV.  The  Soverkiontt  or  Tni:  State 

1.  Analysis  of  the  (inception  of  Sovereijjnty  ;  Meaning 

of  Law  and  Right 53 

2.  The   Location  of  Sovereignty  in  Existing  Govern- 

ments f,(5 

3.  Criticism  of  the  Doctrine  of  Sovereignty  j  Sir  Henry 

Maine's  Objections f.^ 

4.  Theory  of  Political  Sovereignty (;;{ 

5.  Criticism yy 

6.  Dual  or  Divided  Sovereign'  y Q9 


▼I  CONTEXTS 

V.  Turn  Limnrnr  or  the  Individual 

1.  FonnuUtioBoftheldmofCiTilLibntj;  iuD*prad- 

•noa  on  •  CiMrcivii  .Sivttreign  Puwar 71 

2.  Spacial  bantM  winittiiuMt  attoobad   to  th*  Tern 

Liberty 75 

3.  Oriranio  Theory  of  the  Sute 70 

4.  rriticum 8U 

6.  Kl»borat«  Analufieit  of  .Spencer,  ^H!llUffle,  etc.;  the 

Personality  uf  the  Ntate H2 

a.  CriticUin HO 

VI.  Rklation  or  Statkh  to  Onb  Anothkr 

1.  Extemnl  Aspect  of  the  State  ;  Ruguiation  of  ita  Con- 

duct towarck  Other  Ktatca 80 

2.  firolntiun  of  International  Relations ;  First,  Sacond, 

and  Tliird  Periods 01 

3.  Scope  and  Content  of  International  Law      ....  TO 

4.  Propriety  of  the  Term i-jO 

5.  Ii  tarnational  Arbitration 104 

VIL  Th«  Fo  iM  or  THK  State 

I    ilia  Classification  of  States  according  to  their  Form ; 

Aristotle's  Divisions 110 

2.  Later  Claasifiuations ;  Montesquieu,  Ronsaean,  Blnnt- 

achli,  etc 110 

.3.  Practical  Classification  of  Existtii);  States     ....     118 

4.  The  Constitution ;  Written  and  Unwritten  Constitu- 
tions     121 

6.  Origin  of  Written  Constitutions 123 

0.  The  Distinction  between  States  with  Written  and 

those  with  Unwritten  Constitutions  an   Illusory 

Basis  of  Division 128 

7-  Scope  of  the  Constitution 132 

8.  Amendment 134 


PART  II.  —  THE  STRUCTURE   OF  THE  GOVERNMENT 

I.  The  Separation  or  Powers 

1.  Nature  of  Executive,  Legislative,  and  Judicial  Power    141 

2.  Theory    of    the    Separation    of    Powers;    Montes- 

quieu      143 

3.  Influencp  of  this  Theorv  in  America  and  France  .    .     145 


CONTENTS  vU 

4.  Extant    tt    iu    Appliontioii    In   EsUtiair  Gorem- 

>"««>t« .    .     14H 

5.  CoatiiwntAl  Adminiatntira  Law ir4 

6.  OanenI  Critioikui  of  tlia  Thao./  of  tlia  Sapantion  of 

Puwera ...     l,il 

n.    Tbk  LKaillATUBK 

1.  The  Leiruliiture  ;  OenertI  Raqiiiiitet,  Procednre,  «to.     If- . 
8.  The  Uicameral  SyntHiu ;  htniwrn*  fur  iu  Aduption    .     tM 

3.  Compoaition  of  Uppar  Iluuaaa jji- 

4.  Diatributiun  of  Power  between  th«  Two  Ilouaea    .    .     lOlt 
C.  Direct  Le|;i!iliitiun  ;  the  Initiative  and  the  Keferan- 

di»m    ....  27^ 

III.  The  ExBciTivB 

1.  Concentration  ol .   -,     .ty  tha  Firat  Uaqniaita  of  tha 

ExKcutive jgj 

2.  liethoda  of  Appointment;  Hereditary  Exaoutiraa    .    184 

3.  Elective  Esecutivea j}^7 

4.  PreHdential  and  Parliamentary  Oovemment    ...     101 

5.  Subordinate  OiBoiala  and  the  Executive ;  the  Civil 

Service I97 

rV.  The  Ji-DtriARr  aud  the  Elrctokatb 

1.  The  Judicial  Office  and  iU  Tenure 2OT 

2.  The  ReUtion  of  the  Courto  to  the  Execniive  and  to 

the  Lepalature 210 

3.  Adminiatrative  Law  and  Adrainiatrative  Courta    .     .    2 It) 

4.  The  Electorate :  Evolution  of   So^alled  Univeraal 

Stt&  >|^ ;  the  Preaent  Suffrage  in  Leading  Conii> 

tri«« 218 

■ .  Criticism  of  Existing  Syatems ;  the  Case  of  Woman, 

of  Negroes,  etc 224 

6.  Representation  of  Miaoritiea 228 

V.  Federal  Govebnment 

1.  Importance  of  the  Federal  Principle ;  ita  Historical 

Development 233 

2.  The  Different  Kinds  of  Federationa 237 

3.  Sovereignty  in  a  Federal  State 240 

4.  Utility  of  the  Federal  Principle  in  effecting  a  Com- 

proniioe 243 

•i.  Distribution  of  Power  in  Federal  States      •    .    .    ,    244 
6.  Conclusions .    ,    .    253 


viii  CONTENTS 

VL  Colonial  Government 

1.  The  Acquisition  of  Dependencies 258 

2.  Colonies  of  the  Ancient  World 261 

3.  Colonial  Expansion  after  the  Discovery  of  the  Sea 

Route  to  the  East  Indies  and  the  Discovery  of 
America ;  Spanish  Colonial  System      ....        262 

4.  Colonial  Policy  of  Elngland  and  France  in  the  Seven- 

teenth and  Eighteenth  Centuries 261 

5.  The  American  Revolution 268 

6.  Alteration  of  British  Colonial  Policy  in  the   Nine- 

teenth Century ;    Establishment  of  Self -Govern- 
ment     271 

7.  Present  British  System  of  Colonial  Administration  275 

8.  Imperial  Federation 283 

9.  Recent  Colonial  Expansion  of  European  States    .    .  285 
10.  The  Dependencies  of  the  United  States 287 

Vn.  Local  Government 

1.  Local  and  Central  Government  Distinguished  .    .    .    292 

2.  Areas  of    Local  Government ;  the    United    States, 

France,  England 290 

3.  Composition  and  Powers  of  Local  Governing  Bodies ; 

the  United  States 301 

4.  England       3l»8 

5.  France 311 

6.  Prussia 315 

7.  Local   Taxation ;  the  Property  Tax  of  the  United 

States ,S10 

8.  Systems  of  Local  Taxation  in  Other  Countries      .     .321 

0.  Reform  of  the  American  System 328 

VIII.  Party  Government 

1.  Conflict  of  Opinion  on  the  Merits  of  Party  Govern- 

ment     332 

2.  Origin  and   Development   of  the   Party  System   in 

England 336 

3.  Origin  and  Growth  of  Political  Parties  in  the  United 

States 3.3S 

4.  The  Organization  of  American  Political  Parties    .     .  340 

5.  Reform  of  the  Systnm 345 

6.  Party  Machinery  in  Great  Britain   .......  348 

7.  The  Party  Groups  of  Continental  Europe    ....  350 


CONTENTS  ix 

PART  III.  —  THE  PROVINCE  OF  GOVERNMENT 

L  Ikoividcalism 

1.  The  Individualistic  Theory  of  the  Fanctiona  of  Gor- 

ernment 357 

2.  Individualism  as  based  on  a  Theory  of  Justice      .     .     35'J 

3.  Based  on  a  Theory  of  Profitability ;  the  Doctrine  of 

Laissez  Fairs 303 

4.  Based  on  a  Biological  Analogy  :  the  Sorriyal  of  the 

Fittest 306 

5.  Conflicting  Forces 308 

II.  Socialism 

1.  The  Socialistic  Theory ;  its  Destructive  Criticism     .  371 

2.  The  Constructive  Programme  of  Socialism      .    .    .  375 

3.  The  German  Social  Democrats 37S 

4.  Socialism  in  England  and  America 382 

m.  Tbb  Modern  State 

1.  The  New  Environment       386 

2.  Theory  of  Protection  to  Industry 389 

3.  Modem  Protective  Tariffs 393 

4.  Interference   with    Competitive    Prices ;  Trust  and 

Railroad  Legislation 394 

5.  Government  Interference  on  Behalf  of  the  Working 

Class ;  Factory  Laws,  State  Insurance,  and  Pen- 
sions     403 

6.  Municipal  Control 406 

ImiEz 411 


PART  I 

THE  NATURE  OF  THE  STATE 


CHAPTER  I 

POLITICAL  SCIENCE,  THE  THEORY  OF  THE  STATE 

1.  Definition  and  Scope  of  Political  Science.  —  2.  Relation  to  Other 
Sciences.  —  3.  Meaning  of  the  State  ;  its  Essential  Attributes.  — 
4.  The  Distinction  between  State,  Society,  Government,  and  Nation. 
—  5.  The  State  and  a  Common  Faith.  —  6.  The  Ideal  State. 

L  Definition  and  Scope  of  Political  Science. 
A  treatise  on  political  science  must  naturally  begin 
with  some  discussion  as  to  the  scope  and  province  of 
the  dcience  itself,  and  its  relation  with  the  other  branches 
of  human  knowledge  of  a  kindred  character.  This  is  es- 
pecially necessary  for  two  reasons.  In  the  first  place  the 
term  political  science  has  been  used  with  a  good  deal  of 
latitude,  not  to  say  ambiguity,  both  in  colloquial  lan- 
guage and  in  scientific  discussion.  In  the  second  place 
the  relationship  between  this  and  various  other  depart- 
ments of  knowledge,  such  as  jurisprudence,  history,  and 
economics  is  an  extremely  intimate  one.  It  is  neces- 
sary, therefore,  to  endeavor  as  accurately  as  may  be  to 
define  the  proper  field  of  political  science,  and  to  in- 
dicate its  connection  with  other  branches  of  learning. 

An  elaborate  definition  may  better  be  reserved  for 
later  consideration.  For  the  present  a  simple  and  con- 
venient starting-point  may  be  found  in  the  statement, 
inadequate  though  it  is,  'r.t  political  science  deals 
with  government.  The  v.  government,  used  in  its 
widest  sense,  rests  on  the  fundamental  idea  of  control 
and  obedience ;  it  implies  authority,  and  a  submission 


*  THE  NATURE  OF  THE  STATE 

to  that  authority.  It  thus  calls  before  our  minds  a 
phenomenon  which  may  be  considered  almost  coexten- 
sive with  human  society  as  it  at  present  exists,  and 
which  reaches  back  into  the  past  almost  as  far  as  the 
history  of  hi., nan  society  itself.  True  it  is  that  as  we 
follow  its  r  jtreat  into  the  remote  periods  of  history,  it 
recedes  with  a  diminishing  outline  that  tends  towards 
an  unseen  vanishing-point.  But  in  this  it  only  shares 
in  a  characteristic  common  to  all  the  products  of  social 
evolution. 

Now  the  phenomenon  of  government,  as  we  view  it  in 
the  past  and  in  the  present,  shows  anything  but  a  uni- 
form appearance.  It  differs  constantly  in  its  form,  it 
differs  in  its  scope  and  purpose,  and  differs  most  no- 
tably in  the  varying  degrees  of  its  complexity.  These 
divergences  in  the  concrete  aspect  of  government  are 
seen  at  once  by  comparing  the  rude  organization  by 
which  a  primitive  pastoral  tribe  is  held  in  loose  cohesion, 
the  city  state  of  the  Greeks,  the  feudal  system  of  the 
middle  ages,  and  the  intricate  mechanism  of  the  modem 
national  state.  It  is  out  of  these  variations  offered  by 
the  different  types  of  human  organization  in  which  the 
common  element  of  government  is  contained  that  polit- 
ical science  arises.  In  all  branches  of  investigation  it 
is  the  diversities  and  not  the  similarities  of  observed 
phenomena  that  afford  the  primary  motive  for  specula- 
tion. In  the  physical  world  the  diversities  of  form, 
function,  and  structure  among  ^^'I'tits  and  animals  give 
occasion  to  the  investigations  of  the  botanist  and  the 
naturalist.  If  all  plants  and  animals  had  been  of  a  uni- 
form fashion  and  function  their  similarity  would  have 
been  accepted  as  a  matter  of  course.  It  is  the  fact  that 


THE  THEORY  0.       'IE  STATE  5 

this  similarity  dues  not  exist  that  gives  the  initial  stim- 
ulus  to  man's  investigations.  Similarly  in  the  domain 
of  human  institutions  the  heterogeneous  and  complex 
appearance  of  the  phenomena  in  question  affords  the 
basis  of  political  science.  Its  field  lies  in  the  exami- 
nation and  analysis  of  the  varying  forms  of  human 
organization  in  which  the  element  of  social  control  is 
embodied. 

At  this  point  emerges  a  further  analogy  between  the 
study  of  our  physical  and  social  environment.  In  each 
case  the  phenomena  observed  are  found  to  be  in  a 
constant  state  of  change  and  movement.  New  forms 
replace  the  old,  the  whole  representing  a  graded  series 
of  ascending  complexity  in  which  higher  and  higher 
structures  correspond  to  functions  increasingly  elabo- 
rate. In  the  physical  world,  life,  from  being  simple  and 
rudimentary,  becomes  complex  and  differentiated.  New 
organs  are  developed  and  higher  functions  performed. 
In  the  superorganio  world  the  process  of  social  evolu- 
tion is  continuous.  Here  too  are  successive  stages  of 
progress  in  which  the  form  and  character  of  human 
institutions  undergo  an  unceasing  alteration  in  accord* 
ance  with  the  changing  environment  of  social  growth. 
The  study  of  governmental  forms  must  therefore  in 
an  eminent  degree  be  a  comparative  and  historical 
study.  It  must  not  content  itself  with  a  mere  analysis 
of  political  institntions  .*s  existing  at  any  given 
point  of  time  ;  it  ust  take  account  of  the  process  of 
change  and  evolution  and  the  alten.tion  of  social  and 
intellectual  environment.  This  is  what  is  meant  by  the 
statement  that  the  investigations  of  political  science 
must  be  of  a  dynamic  and  not  a  static  character.  They 


6  THE  NATURE  OF  THE  STATE 

must  be  directed  towards  the  proper  interpretation  of 
movements  and  tendencies  in  addition  to  the  analysis 
of  the  status  and  structure  of  existing  institutions. 
The  organized  aspect  of  the  community,  the  state, 
must  be  treated  not  only  as  an  actuality,  but  also  as  a 
product  of  the  past,  and  as  the  basis  of  the  life  of  the 
future. 

2.  Relation  to  Other  Sciences.  Herein  appears 
the  connection  between  history  and  political  science,  a 
connection  somewhat  difficult  to  state  in  precise  terms 
without  making  one  of  the  two  assume  a  subordinate 
character.  There  is  indeed  a  natural  tendency  on  the 
part  of  the  political  scientist  to  view  history  some- 
what in  the  light  of  mere  raw  material,  and  an  equally 
natural  tendency  on  the  part  of  the  historian  to  view 
political  science  somewhat  in  the  light  of  an  emana- 
tion, one  might  almost  say  an  excrescence,  of  history. 
It  may  with  fairness  be  said  that  the  two  studies  are 
mutually  contributory  and  complementary.  Political 
science  would  certainly  be  impossible  without  history ; 
history  would  lose  its  main  significance  without  at  least 
an  unconscious  political  science.  The  facts  of  history 
—  not  all  of  them,  but  such  as  are  significant  for  the 
study  of  institutions  —  constitute  a  part  of  the  ground- 
work of  political  science ;  not,  it  is  to  be  noted,  the 
whole  groundwork,  for  political  science  must  also 
build  upon  ethical  and  psychological  foundations.  Thus 
one  might  be  tempted  to  employ  the  terminology  of 
the  logician  and  say  that  some  of  history  is  part  of 
political  science,  the  circles  of  their  contents  over-lap- 
ping an  area  enclosed  by  each.  Hence  it  is  that  in  the 
subdivisions  of  political  science  offered  by  some  writers 


THE  THEORY  OF  THE  STATE 


**  historioft]  political  soienoe,"  or  the  history  of  political 
institations,  is  one  branch  of  the  main  subject.*  The 
connection  between  these  allied  branches  of  knowledge 
has  been  well  indicated  by  Professor  Seeley,  who  tells 
us  that  political  science  is  the  fruit  of  history,  and 
history  is  the  root  of  politic;;'  science.'  A  recent 
American  writer  *  has  illustrated  the  relationship  in  a 
still  more  striking  manner  by  saying  that  history  offers 
the  third  dimension  of  political  science. 

But  while  commenting  on  the  intimate  interdepen- 
dence of  these  two  branches  of  learning,  their  essential 
difference  must  not  be  forgotten.  Political  science  has 
no  concern  with  history  in  its  purely  narrative  aspect; 
it  has  no  interest  in  the  mere  cumulation  of  instances ; 
nor  has  it  any  interest  in  the  military,  commercial,  or 
economic  aspects  of  history  as  such ;  only  in  so  far  aa 
these  bear  upon  the  evolution  of  organized  social  oon> 
trol,  only  so  far  as  they  elucii'ate  the  nature  of  the 
state,  are  thay  of  import  for  the  student  of  political 
science.  The  latter  must  revert  to  history  for  much  of 
the  material  of  his  study,  but  always  in  an  eclectic  or 
selective  fashion,  coordinating  his  facts  with  a  view  to 
their  special  significance.  Thus,  for  example,  the  history 
of  the  Puritan  colonies  of  North  America  is  of  primary 
interest  to  the  student  of  political  science  as  illustrat- 
ing the  growth  of  democratic  self-government,  the  pro- 
gressive application  of  the  federal  principle  of  political 

»  Compare  W.  W.  WUlonghby,  The  Nature  oftht  8taU,  ohap.  i. 

'  J.  R.  S«eley,  Introduction  to  Political  Science.  Compare  ako  the 
following :  "  The  science  of  politics  is  the  one  science  that  ia  deposited 
by  the  stream  of  history,  like  the  grains  of  gold  in  the  saad  of  a  riTer." 
Lord  Acton,  The  Study  o/Hittory, 

'  W.  W.  WiUooghby,  «p.  cit. 


•  THE  NATUPF  OP  THE  STATE 

ooniolidation,  the  relations  of  ohnroh  and  state,  and 
the  evolution  of  written  constitutions.  The  eoonomio 
life  of  the  colonies  is  of  only  secondary  and  indirect  im- 
portance. The  religious  controversies  of  the  period  as 

such,  the  romantic  aspects  of  the  history  of  the  time, 

the  adventurous  intercourse  of  settlers  and  savages, 
the  changes  of  manners,  speech,  and  costume  occasioned 
by  the  new  environment,  have  still  less  bearing  on  the 
problems  of  political  science.  Similarly  the  domain  of 
the  historian  has  its  distinct  limitations.  Dr.  Georg 
Jellinek  accurately  circumscribes  the  province  of  his- 
tory as  follows:  "History  presents  to  us  rot  only  facts 
but  the  causal  connection  between  the  facts.  It  dif. 
f ers,  however,  from  the  theoretical  sciences  in  that  it  al- 
ways examines  concrete  oases  of  cause  and  effect,  never 
abstract  types  and  laws.  If  the  historian  undertakes 
this  he  passes  the  bounds  of  his  ov^'n  province  and 
becomes  a  philosopher  of  history  or  a  sociologist.  It  is 
true  that  no  historian  will  be  willing  entirely  to  forego 
this  higher  aspect  of  history,  but  there  is  no  science 
which  offers  to  its  students  a  con.plete  self-sufficiency."  • 
Political  science  stands  also  in  close  relation  to  po- 
litical economy.  The  purpose  of  the  latter  is  to  investi- 
gate "  man's  activity  in  pursuit  of  wealth." »  It  deals 
with  the  production  and  distribution  of  wealth  under 
the  influence  of  forces  both  material  and  psychologi- 
cal.  Inasmuch  as  the  production  and  distribution  of 

^  Becht  del  Modemen  Staatet,  toI.  i,  chap.  i. 

'  "  Political  Economy,  or  Economics,  ia  a  atudy  of  mankind  in  tha 
ordinary  bnabeas  of  life ;  it  ezaminea  that  part  of  individual  and  social 
action  which  ia  most  elosaly  connected  with  the  attainment  and  with 
the  use  of  the  material  teqnisitea  of  well  being."  Manhall,  Princ^iU* 
of  Economic*,  toL  i,  bk.  i,  oh.  L 


THE  THEORY  OF  THE  STATE  • 

m»terial  wealth  is  rerj  largely  conditioned  by  the  ex- 
iiting  form  of  government  and  the  institutional  basis 
of  economic  life,  the  study  of  political  economy  is 
brought  int  >  an  intimate  relation  with  that  of  political 
science.   The  system  of  the  English  sciiool  of  classical 
economists,  for  instance,  is  presumed  to  flow  from  the 
original  postulates  of  private  individual  property,  of 
unimpeded  contra(  L   under  a  social  sanction,  and  a 
mobility  of  the  strata  of  society  unhindered  by  non-eco- 
nomic forces.   Conversely  it  is  also  true  that  political 
institutions  are  greatly  affected  by  economic  circum- 
stances.  The  particular  form  of  government  existing 
at  any  period  and  place,  and  ih"  •lirection  and  extent 
of  its  activity,  are  largely  dependent  on  the  economic 
life  of  the  community  in  question.  Thus  one  would 
naturally  expect  the  political  institutions  of  a  mij^ratory 
pastoral  tribe  to  differ  from  those  of  a  community 
deriving  its  sup^rt  from  a  fixed  form  of  agriculture, 
while  each  of  them  would  differ  in  the  form  and  char- 
acter of  its  government  from  a  manufacturing  popu- 
lation centred  in  great  cities.    The  state,  in  a  word,  is 
conditioned  by  its  economic  environment.*   Nor  is  it 
only  in  their  fundamental  bases  thai  the  sciences  of 
economics  and  politics  stand  in  close  relation,  for  many 
specific  subjects  of  inquiry  belong  in  a  measure  to  each 
of  them.   Such  questions  as  the  social  control  of  muuo- 
poly,  the  governmental  management  of  railroads,  and 
the  municipal  ownership  of  public  utilities  present  both 
an  economic  and  a  political  aspect.   To  the  economist 
the  problem  is  one  of  eco'^  omic  efficiency  and  equitable 

*  The  line  of  thought  here  raggreated  form*  the  baaid  of  what  is 
called  the  materialktio  theory  of  history.  See  below,  chap.  iii. 


,M 


10 


THE  NATURE  OF  THE   STATE 


distribntion ;  to  the  ttadent  of  political  Mionoe  it  t«  ft 
qaettion  of  administrative  organiiation.* 

The  relation  of  political  science  to  Tarious  other 
branches  may  be  discussed  more  briefly.  Constitu- 
tional law,  the  analysis  of  the  organisation  of  a  par- 
ticular state  at  a  particular  time,  would  seem  to  be 
best  classed  a*  a  subdivision  of  political  science,  or 
at  any  rate  to  oover  a  large  field  in  common  with  it. 
Opinion  might  also  differ  as  to  whether  international 
law,'  dealing  with  the  relation  of  states  with  one  an- 
other, should  more  propeily  be  classed  as  an  included 
or  only  a  kindred  subject.  It  may  at  any  rate  be  said 
that  in  measure  as  international  relations  develop  into 
the  fixity  of  a  true  international  law,  —  a  code  enforced 
by  a  recognized  authority,  —  so  does  international  law 
become  merg^  in  the  domain  of  political  science.  Last 
of  all  may  be  mentioned  the  relative  position  of  politi- 
cal science  and  dociology.  Here  the  former  must  be 
considered  in  the  light  of  an  included  portion  of  the 
more  general  field.  Sociology  deals  not  only  with 
org^ized  communities,  but  also  with  communities  in 
which  the  element  of  social  control  is  as  yet  feebly  dif- 
ferentiated .  It  deals  not  only  with  the  legal  and  coercive 
relationship  of  man  with  his  fellows,  but  also  with  the 

^  The  unbignona  nUtion  io  which  the  temu  "  political  Mienoe  "  and 
"  political  economy  "  ttand  to  one  another  it  rendered  still  more  con- 
fusing by  the  divergent  usages  of  leading  American  nniTersities.  At 
Harvard  "  Economics  "  is  a  subdivision  of  the  department  of  "  History 
and  Political  Science."  At  Yale  both  "  Economics  "  and  "  Politics  " 
appear  under  the  departmental  title  of  "  Social  Sciences."  At  Chicago 
"  Political  Economy  "  and  "  Political  Science  "  constitute  separate  de- 
partment*, 

3  Jellinek  considers  international  law  a  branch  of  jurispmdenoe 
{BechUwistenicht^),  which  is  itself  a  mbdivision  of  poUtieal  i 


THE  THEORY  OF  THE  STATE 


li 


•TolatioD  and  itatut  of  ouitoms,  numnen,  religion,  and 
eoonomio  life.  Most  important  is  it  to  observe  that  so- 
ciology treats  not  only  of  consoious  but  also  of  unoon* 
scions  social  activities.'  How  far  such  a  science  can  be 
anything  more  than  a  group  of  subdivisions,  or  a  name 
for  a  sort  of  general  wisdom  in  regard  to  man's  social 
environment,  gained  from  specific  studies,  is  perhaps 
open  to  question.  Certainly  in  the  hands  of  many  of  its 
exponents  it  seems  to  lose  in  intensity  what  it  gains 
in  width.  Nevertheless,  if  one  accepts  the  **  science  of 
society  "  on  its  own  terms,  it  is  proper  to  consider  that 
it  includes  political  science  as  one  of  its  subdivisions. 
On  this  basis  one  ma;  proceed  to  a  formal  definition  of 
political  science,  which  may  best  be  accepted  in  the 
form  offered  by  Paul  Janet :  **  Political  Science  is  that 
part  of  social  science  which  treats  of  the  foundations 
of  the  State,  and  of  the  principles  of  government."  Be- 
siue  this  may  be  placed  the  definition  of  J.  K.  Blunt- 

1  "Of  all  the  mnltifMioof  projeeti  for  fizingr  the  bonndwy  whieh 
muka  off  politiosl  from  the  more  (renerml  eooUl  eeienee,  that  eeeme 
moat  Htiafaotory  which  buee  the  dietinotion  <m  the  exiatenoe  of  s  po- 
iitie«l  ociMoioaaiieti.  Without  etopping  to  inquire  too  ouriouely  into  the 
precise  oomiotation  of  thia  tenn,  it  may  aaf  ely  be  laid  down  that  aa  a 
rule  prim-  i  'e  oommunitiea  do  not,  and  advanced  eommnnitiea  do  mani- 
feat  the  iMiitical  conaoiouaneaa.  Henoe,  the  opportunity  to  leave  to  so- 
eiology  the  entire  field  of  primitive  inatitutiona,  and  to  regard  aa  truly 
political  only  thoae  inatitutiona  and  thoae  theoriea  whieh  are  ol<&ely 
aaaociated  with  anch  manifeatetion."  W.  A.  Dunning,  Histoiy  of  Po- 
litical Theoriu,  Ancieta  and  Mediceval,  Introduction,  xvi— But  com- 
pare with  thia  the  following :  "  Human  aociety  truly  begins  when  aocial 
conaoiousneis  and  tradition  are  so  far  developed  that  all  aocial  relations 
exiat  not  only  objectively  as  physical  facts  of  association,  but  anbjec- 
tively  also  in  the  thought,  feeling,  and  purpose  of  the  associated  indi- 
viduals." Oiddinga,  Theory  qf  Sociology  {AimaU  Am.  Aead.  FoL  ami 
8oc  Scitnu,  1894). 


18 


THE  NATURE  OF  THE  STATE 


Bchli,  which  draws  especial  attention  to  the  dynamic 
nature  of  the  study  involved:  '* Political  Science  is 
the  science  which  is  concerned  with  the  State,  which 
endeavors  to  understand  and  comprehend  the  State  in 
its  conditions,  in  its  essential  nature,  its  various  forms 
and  manifestations,  its  development."  * 

3.  Meaning  of  the  State;  its  Essential  Attri- 
bntes.  Political  science,  then,  deals  with  the  state ;  it 
is,  in  short,  as  it  is  often  termed,  ^  the  "  theory  of  the 
state."  The  word  "  state  "  is  sufficiently  familiar  to  have 
been  used  in  the  preceding  discussion  without  explana- 
tion. It  is  now  necessary  to  make  a  nearer  analysis 
of  the  exact  meaning  to  be  attached  to  the  term.  An 
examination  of  the  ordinary  senses  in  which  the  word 


'  For  conyenient  compariion  the  following  definitioiu  of  allied  Mi- 
enoes  may  here  be  noted :  — 

(1)  SociOLOOT.  "Sociology,  defined  as  the  Bcienoe  of  social  phe- 
nomena, indndes  all  of  these  social  sciences  (that  is,  economics,  politics, 
history,  etc.) ;  but  in  this  general  use  of  the  term  it  is  not  a  distinct  sci- 
ence, but  rather  the  name  for  a  body  of  knowledge,  including  several 
Bciencf^g.  The  more  definite  sphere  of  sociology  as  a  science  is  indi- 
cated when  we  rec  agnize  that  each  of  the  sciences  dealing  with  social 
phenomena  involves  a  theory  as  to  the  nature  of  society."  A.  Fair- 
banks, Introduction  to  Sociology.  "  I  am  tempted  to  define  Sociology 
as  the  science  of  associated  humanity,  that  is,  of  humanity  so  far  as  it 
is  united  and  so  far  as  it  is  associated.' '  J.  H.  W.  Stuckenberg,  7n- 
troduetiou  to  the  Study  of  Sociology.  All  the  writers  on  sociology  dis- 
cuss its  claim  to  existence  as  a  science,  though  formal  definitions  are 
few.  Compare  Herbert  Spencer,  Study  of  Sociology,  chap,  ii ;  De  Qreef , 
Introduction  Dl  la  Sociologie,  part  i,  chap,  i ;  Small  and  Vincent,  Intro- 
duction to  the  Study  of  Society,  bk.  i,  etc. 

(2)  JuRiSPRCDENCR.  Jurisprudence  is  the  "  formal  science  of  those 
relations  of  mankind  which  are  generally  recognized  as  having  legal 
eonsequences.  ...  It  may  ...  be  defined  provisionally  as  the  formal 
science  of  poritive  law."   T.  E.  Holland,  Eiementt  of  JmiBprvdence. 

'  See,  for  example,  M'Kechnie,  The  State  and  the  Individual,  Introd. 


THE  THEORY  OF  THE  STATE 


13 


is  used  shows  at  once  a  considerable  latitude  in  its 
employment.  Thus  when  we  speak  of  the  different 
*'  states  "  of  Christendom,  or  refer  to  France,  Germany, 
etc.,  as  the  leading  states  of  Europe,  the  word  seems 
roughly  to  correspond  with  such  terms  as  country,  in- 
ternational power,  etc.  When  on  the  other  hand  we 
talk  of  the  relations  existing  between  the  "  church  and 
the  state,"  we  have  no  reference  to  international  affairs ; 
the  idea  implied  is  rather  that  of  association  or  organi- 
zation. Again,  in  such  uses  as  "  The  State  and  the  Indi- 
vidual "  (the  title  of  the  recent  work  on  political  science 
already  mentioned),  or  in  the  title  of  one  of  Herbert 
Spencer's  books, "  The  Man  versus  the  State,"  the  word 
is  plainly  used  to  imply  a  contrast  between  the  individ- 
ual citizen  and  the  collective  aspect  of  the  community. 
Finally,  in  such  phrases  as  "  state  aid  to  the  poor," 
"  state  control  of  railroads,"  etc.,  what  is  thought  of  is 
not  so  much  the  community  collectively  as  the  special 
machinery  or  organized  agency  through  which  the  com- 
munity acts. 

Out  of  the  different  elements  here  embodied  we  may 
construct  an  exact  conception  of  what  is  meant  by  the 
state  in  the  technical  language  of  political  science.   It 
embodies  as  the  factors  of  which  it  is  composed :  — 
I.  A  territory. 
II.  A  population. 

III.  Unity. 

IV.  Organization.' 

1  The  requisites  are  thna  stated  by  Blnntsehli.  He  prefers  to  add 
"  soTereignty,"  a  factor  which  seems,  however,  to  result  from  the  combi- 
nation of  the  last  two  giren  above,  and  tha  utnre  of  which  is  consid- 
ered in  a  later  chapter  (part  i,  oh.  iv). 


14 


THE  NATURE  OF  THE  STATE 


Let  U8  briefly  examine  these  in  turn.  Without  a  defi- 
nite territory  there  can  be  no  state.  The  Jews,  being 
scattered  abroad  and  dissociated  from  the  occupation 
and  control  of  any  particular  territory,  do  not  constitute 
a  state.  Professor  Holland  in  the  definition  given  in  his 
"  Elements  of  Jurisprudence,"  speaks  of  a  "  numerous 
assemblage  of  human  beings  generally  occupying  a  cer- 
tain territory."  But  it  seems  advisable  to  insist  on  the 
idea  of  land  being  necessary.  Equally  necessary  is  a 
population.  It  goes  without  saying  that  an  uninhabited 
portion  of  the  earth,  taken  in  itself,  cannot  form  a 
state.  The  third  requisite  is  said  to  be  unity.  By  this 
is  meant  that  the  territory  and  population  in  question 
must  form  no  part  of  a  wide,  political  unit ;  nor  must 
the  territory  contain  any  portion  or  portions  which  while 
forming  geogra  cally  a  part  of  it,  are  not  a  part  of  it 
politically.  The  island  of  Haiti  is  a  geographical  unit, 
but  being  divided  into  the  separate  republics  of  Haiti 
and  Santo  Domingo,  does  not  present  the  unity  required 
to  constitute  a  state.  In  the  same  way  the  separate 
"  states  "  of  the  American  Union  are  not  states  in  the 
technical  sense  of  the  term,  since  each  forms  part  of 
the  single  political  entirety  known  as  the  Lfnited  States. 
The  United  States  as  a  totality  constitutes  a  state; 
the  "state"  of  Massachusetts  dues  not.  The  final  re- 
quisite, that  of  organization,  is  one  that  must  be  care- 
fully noted.  Even  granting  that  we  have  a  territory 
and  population  disconnected  from  the  rest  of  the  world, 
and  thus  in  a  sense  a  unit,  we  have  not  yet  a  state. 
Imagine,  for  example,  that  a  "  numerous  .assemblage  of 
human  beings," "'  use  Professor  Holland's  phrase,  were 
deposited  upon  some  uninhabited  island  not  owned  or 


THE  THEORY  OF  THE  STATE 


16 


controlled  by  any  existing  government.  Here  we  should 
have  land  and  population  and  unity,  but  the  inhabitants, 
having  as  yet  no  cohesion  or  connection,  would  not 
form  a  state.  Imagine  however  that  these  inhabitants, 
being  persons,  we  may  suppose,  accustomed  to  live 
under  a  settled  government,  should  agree  to  form  them- 
selves into  an  organized  body  and  to  vest  the  control 
of  all  of  them  in  the  hands  of  certain  among  their 
number.  We  should  then  have  a  state.  Or  let  us  im- 
agine a  very  different  state  of  affairs.  Suppose  that  a 
certain  number  of  the  inhabitants  were  enabled  by  their 
superior  physical  force  or  cunning  to  reduce  the  others 
to  a  condition  of  submission,  so  that  settled  relations  of 
control  and  obedience  were  established.  In  this  case  too 
there  would  be  a  state.  For  the  organization  needed  to 
constitute  a  state  need  not  be  one  establfshed  by  mutual 
consent  or  one  of  an  equitable  nature.  The  mere  exist- 
ence of  settled  obedience  to  a  superior,  coercive  force 
is  all  that  is  required.  Any  form  of  despotism  or  tyr- 
anny which  fulfills  these  conditions  establishes  a  polit- 
ical state  just  as  much  as  does  a  government  whose 
authority  rests  on  a  general  acquiescence. 

Such,  then,  is  the  nature  of  the  state.  As  formal 
de-fin'  .ions  we  may  cite  the  following.  (1)  "  A  State  is  a 
people  organized  for  law  v'itbin  a  definite  territory  " 
(Woodrow  Wilson) . '  (2)  "  The  body  or  community  which 
thus  by  permanent  law,  through  its  organs  administers 
justice  within  certain  limits  of  territory  is  called  a 
State  "  (Theodore  Woolsey).*  A  more  elaborate  defi- 
nition, the  full  bearing  of  which  will  appear  in  our  dis- 
cussion of  sovereignty,  is  given  by  Professor  Holland : 

^  W.  Wilson.  The  StaU.  '  T.  Woolsey,  Political  Science. 


M 


THE  NATURE  OF  THE  STATE 


"A  State  is  a  numerous  assemblage  of  human  beings, 
generally  occupying  a  certain  territory,  amongst  whom 
the  will  of  the  majority  or  of  an  ascertainable  class  of 
persons  is,  by  the  strength  of  such  a  majority  or  class, 
made  to  prevail  against  any  of  their  number  who  op- 
pose it."  * 

4;  The  Distinction  between  State,  Society, 
Oovemment,  and  Nation.  The  meaning  to  be  at- 
tached to  the  word  state  will  be  rendered  more  precise 
by  distinguishing  it  from  society,  government,  and 
nation.  The  term  society  has  no  reference  to  territorial 
occupation ;  it  refers  to  man  alone  and  not  to  his  en- 
vironment. But  in  dealing  with  man  its  significance 
is  much  wider  than  that  of  state.  It  applies  to  all  hu- 
man commun?^'es,  whether  organized  or  unorganized. 
It  suggests  not  only  the  political  relations  by  which 
men  are  bound  together,  but  the  whole  range  of  human 
relations  and  collective  activities.  The  study  of  society 
involves  the  study  of  man's  religion,  of  domestic  insti- 
tutions, industrial  activities,  education,  crime,  etc.  The 
term  government,  on  the  other  hand,  is  narrower  than 
state.  It  refers  to  the  person  or  group  of  persons 
(which  in  a  modern  community  wil!  be  very  numerous) 
in  whose  hands  the  organization  of  the  state  places  for 
the  time  being  the  function  of  political  control.  The 
word  is  sometimes  used  to  indicate  the  persons  them- 
selves, sometimes  abstractly  to  indicate  the  kind  and 
composition  of  the  controlling  group.  The  ordinary 
citizens  of  a  community  are  a  part  of  the  state,  but 
are  not  part  of  the  government.  The  term  has  more- 
over no  reference  to  territory.     The  distinction  will 

^  T.  £.  Holland,  £lemetU$  of  Juritprudence. 


'A 


THE  THEORY  OF  THE  STATE 


17 


'3 
1 


appear  more  evident  in  our  subsequent  discussion  of 
sovereignty.' 

In  the  next  place  it  is  to  be  observed  that  nation 
and  state  are  two  distinct  conceptions.  The  term 
nation,  though  often  loosely  used,  is  properly  to  be 
thought  of  as  having  a  racial  or  ethnographical  signifi- 
cance. It  indicates  a  body  of  people  —  the  Germans, 
the  French,  the  Hungarians,  etc.  —  united  by  common 
descent  and  a  common  language.  But  such  divisions 
by  no  means  coincide  with  the  political  divisions  of  the 
civilized  world  into  states.  Austria-Hungary  consti- 
tutes a  single  state,  but  its  population  is  made  up  of 
members  of  a  great  many  different  races.  The  political 
division  of  the  civilized  world  into  states  freely  inter- 
sects with  the  division  into  races,  although  sometimes 
the  political  units  —  as  in  the  case  of  modem  France 
— are  almost  coincident  with  the  ethnographic.  The 
relation  between  political  or^,.  *  '"••  and  nationality 
has  been  a  changing  one.  In  cot:  -'assical  world,  in 
the  city  states  of  ancient  Greece  and  Italy,  kinship 
among  the  citizens  was  considered  an  elemental  factor 
in  the  composition  of  the  state.  In  ancient  Athens 
and  Sparta  persons  of  alien  race  were  not  considered 
as  members  of  the  political  community.  Hence  in  the 
political  thought  of  classical  Greece  the  conception  of 
the  state  is  limited  to  a  small  area  occupied  by  persons 
of  the  same  race.    In  the  Roman  world,  the  original 

'  Professor  Bnrgess  in  his  Political  Science  and  Constitutional  Law 
adepts  a  different  basis  of  distinction  :  "  state  "  and  "  goTemment "  are 
each  made  to  refer  to  the  organs  of  social  control  and  not  to  the  terri- 
tory or  population ;  the  latter  term  designates  the  ordinary  mechanism 
of  administration,  the  former  the  supreme  body  having  absolute  legal 
power.    See  vol.  i,  Political  Science  and  Constitutional  Law. 


It 


THE  NATURE  OF  THE  STATE 


i    ; 


conception  of  a  city  state  with  a  common  nationality 
was  transformed  by  the  process  of  absorption  and  con- 
quest into  the  larger  conception  of  a  world-wide  state 
and  universal  sovereignty.  Nationality  is  here  lost 
from  sight.  The  foreign  nations  occupying  the  sub- 
jugated provinces  were  recognized  by  virtue  of  the 
Emperor  Caracalla's  act  of  general  enfranchisement 
(a.  d.  212)  as  citizens  of  the  universal  empire.  Such 
a  conception,  as  will  be  seen  in  a  later  chapter,  long 
survived  as  the  basis  of  European  polity,  though 
existing  only  in  the  shadowy  form  of  the  titular 
Holy  Eoman  Empire.  In  actual  fact,  however,  it  was 
displaced  by  other  political  conceptions.  Feudalism 
brought  with  it  the  notion  of  territorial  sovereignty 
and  dynastic  supremacy.  A  state  became  coincident 
with  the  domain  owned,  if  one  may  use  the  term,  by 
a  particular  house  and  its  descendants,  and  quite  irre- 
spective of  the  nationalities  of  the  subject  peoples. 
States  werj  formed  out  of  communities  of  vailing 
nationalities  by  inheritance,  by  cession,  by  marriage  of 
their  sovereigns.  Witness  for  example  the  sovereignty 
of  Henry  II  over  Anjou,  Aquitaine,  etc. ;  the  claim  of 
Edward  III  to  the  crown  of  France;  and  at  a  later 
date,  the  empire  of  Charles  V,  who  inherited  Bur- 
gundy, Spain,  part  of  Italy,  and  various  Austrian 
territories.  To  a  large  extent  this  political  fusion  has 
fortunately  been  accompanied  by  a  fusion  of  languages, 
as  in  the  amalgamation  of  modern  Ff-^'^e. 

It  was  in  the  nineteenth  century  that  the  claim  of 
nationality  as  the  paramount  basis  of  state  organization 
strongly  asserted  itself.  The  great  political  upheaval 
consequent  upon  the  American  and  French  revolutions 


THE  THEORY  OF  THE  STATE 


19 


led  to  an  intense  national  movement  in  most  parts  of 
Europe.  Under  its  influence  modern  Italy  has  been 
converted  (1815-1870)  into  a  national  state.  Germany 
has  assumed  a  definite  national  form  in  the  modern 
German  £mpire  (1871),  whose  boundaries,  however, 
are  not  identical  with  those  occupied  by  the  German 
people.  In  other  countries  —  Hungary,  Ireland  —  the 
same  movement  has  been  seen  in  abortive  form,  while 
the  modem  aspirations  of  Pan -Slavism,  Pan -Ger- 
manism, and  "  unredeemed "  Italy  foreshadow  the 
part  that  nationality  is  to  play  in  the  organization 
of  the  states  of  the  future.  Common  nationality  is 
therefore,  though  not  an  actual  requisite  in  the  com- 
position of  the  state  as  it  now  'exists,  a  potent  factor 
in  its  formation. 

5.  The  State  and  a  Common  Faith.  At  van 
ous  periods  in  the  world's  history  we  find  the  idea 
that  the  existence  of  a  common  religious  faith  among 
the  members  of  the  state  is  essential  to  its  exist-> 
ence.  Such  was  the  dominant  element  In  the  com- 
position of  the  ancient  Jewish  theocracy.  In  the 
period  following  the  reformation  in  Europe  heretical 
belief  was  considered  by  both  Protestant  and  Catho- 
lic monarchies  an  offense  against  the  state  and  was 
punished  as  such.  In  the  theocratic  Puritan  colonies  in 
America  (Massachusetts  and  New  Haven)  only  the 
members  of  the  church  were  at  first  admitted  to  the 
exercise  of  political  rights.  With  the  growth  of  the 
doctrine  of  religious  toleration  such  a  view  of  the  state 
has  passed  away.  The  civil  authority  and  the  civil 
bond  among  the  citizens  is  dissociated  from  their  reli- 
gion. In  many  countries,  however,  established  churches 


W  THE  NATURE  OF  THE  STATE 

supported  by  the  state  remain  as  historic  survivals 
of  the  earlier  point  of  view. 

6L  The  Ideal  State.  In  all  of  the  foregoing  an- 
alysis we  have  treated  of  the  state  as  it  actually  ex- 
ists, not  the  state  as  it  might  be  if  viewed  in  its  perfect 
form.  This  is  the  distinction  made  by  the  German 
writers  *  between  the  conception  and  the  idea  of  the 
state.  The  conception  of  the  state  at  any  particular 
historical  period  is  found  in  the  common  attributes  of 
the  states  actually  existent.  The  idea,  on  the  other 
hand,  is  the  ideal  of  perfect  form  of  which  any  actual 
state  is  only  an  approximate  realization.  This  ideal  has 
varied  from  age  to  age.  To  the  Greeks  the  ideal  was 
to  be  sought  in  the  perfected  form  of  the  city  state.  In 
our  own  day  the  national  state  has  served  as  the  em- 
bodiment of  perfect  political  organization.  But  a  wider 
ideal  is  conceivable  in  the  form  of  the  world  state  or 
state  universal.  The  realization  of  such  a  political  or- 
ganization, as  has  been  said,  was  long  the  haunting  ideal 
of  European  policy.  We  see  it  reflected  in  the  claims 
of  the  Roman  emperor,  in  the  less  substantial  claims  of 
the  Eastern  emperor  at  Constantinople  after  the  fall 
of  Rome,  in  the  resuscitation  of  the  empire  by  Charles 
the  Great  (a.  d.  800),  and  in  the  vague  sovereignty 
of  the  Holy  Roman  Emperor  from  that  date  until  the 
abolition  of  the  titular  dignity  (1806)  through  the 
power  of  Napoleon.  The  same  ideal  hovers  before  us 
as  offering  the  goal  of  the  political  organization  of  the 
future.  The  development  of  international  relations  that 
could  lead  to  such  an  end  will  be  discussed  in  a  later 
chapter. 

1  Se«  J.  K.  BInntschli,  Ueory  of  the  Stale,  bk.  i,  chap.  L 


THE  THEORY  OF  THE  STATE  21 

READINGS  SUOOESTEO 
Bnrgeu,  J.  W.,  Political  Science  and  Constitutional  Law  (1898), 

▼ol.  i,  bk.  i,  obap.  i,  ii,  iii,  iv. 
Bluntiohli,  J.  K.,  Tbe  Tbeory  of  the  State  (trannlation  of  6tb 

edition,  1885),  Introd.,  cbap.  i,  ii,  iii,  and  bk.  i,  cbap.  i. 
Sidgwick,  H.,  ElemenU  of  Politica  (2d  edition,  1897),  chap.  L 

FURTHER  AUTHORITIES 
Jellinek,  G.,  Daa  Reobt  des  Modernen  Staates,  toI.  i  (1900). 
Willongbby,  W.  W.,  Tbe  Nature  of  tbe  SUte  (1896). 
Seeley,  Sir  J.  R.,  Introduction  to  Political  Science  (1896). 
M'Keobnie,  W.  S.,  Tbe  State  and  tbe  Individual  (1896). 
Pollock,  Sir  Frederick,  A  First  Book  of  Jurisprndenoe  (1806). 
HoUapd,  T.  £.,  Elements  of  Jurisprudence  (1888). 
BoMinquet,  B.,  The  Pbilosopbical  Tbeory  of  the  State  (1899). 
Wilson,  W.,  Tbe  Stote  (revised  edition,  1900). 
Woolsey,  T.,  Political  Science,  vol.  i  (1878). 


CHAPTER  II 


ORIGIN  OF  THE  STATE;  FALLACIOUS  THEORIES 

1.  Theory  of  the  Social  Contntot.  —  2.  Application  uuwle  of  the  Theory 
by  Hobbei,  Locke,  and  RooMean.  —  3.  Criticiem  of  the  Theory.  — 
4.  The  Theory  of  Dirine  Origin.  — 5.  The  Theory  of  Foroe. 

1.  Theory  of  the  Social  Contract  After  a  pre- 
liminary investigation  of  the  proper  province  of  po- 
litical science,  the  topic  which  of  necessity  takes  the 
first  place  in  our  inquiry  is  that  of  the  origin  of  the 
state.  How  has  it  come  about  that  men  are  every- 
where found  living  under  some  form  of  authoritative 
control?  What  is  the  origin  of  government  and  law? 
Speculation  as  to  the  beginnings  of  government  is  not 
merely  a  matter  of  historical  curiosity,  for  it  is  inti- 
mately associated  with  the  more  important  question 
of  the  justification  of  government,  —  the  right  of  the 
state  to  be.  The  present  subject  thus  brings  before 
us  both  a  historical  and  an  ethical  enquii^,  — the  in- 
vestigation of  the  facts  as  to  the  actual  beginnings 
of  political  forms  and  the  discussion  of  the  bearing 
of  thest^  facts  on  the  question  of  the  rightfulness  or 
wrongness  of  the  existence  of  government. 

To  examine  and  reject  a  fallacious  hypothesis  is 
often  a  means  of  arriving  at  the  truth.  In  the  present 
instance  a  presentation  of  some  of  the  mistaken  theories 
proposed  as  to  the  origin  of  the  state  may  aid  us  in 
moving  towards  a  correct  one.  The  different  opinions 
which  we  shall  briefly  review  have  had  such  great 


ORIGIN  OF  THE  STATE  23 

influence  in  the  formation  of  existing  political  insti- 
tutions that  a  proper  understanding  of  them  is  neces- 
sary in  onler  to  appreciate  the  forces  ojierative  in  the 
growth  and  structure  of  modern  governments.     The 
purpose  of  the  ensuing  discussion  is  not,  therefore,  the 
merely  sophistical  task  of  demolishing  hypotheses  of 
.raw.   The  rejection  of  what  is  false  in  the  specula- 
tive theories  of  the  past  will  aid  in  establishing  more 
valid  conclusions  on  the  residual  basis  of  what  is  true. 
Foremost  in  historical  importance  of  all  the  different 
views  concerning  the  origin  of  the  state,  is  the  theory 
of  the  social  contract.   As  old  as  political  speculation 
itself,  and  preeminent  in  its  influence,  it  stands  written 
large  upon  the  history  of  human  thought.   Post}K)ning 
for  the  moment  the  treatment  of  the  beginnings  and 
growth  of  the  theory,  let  us  first  examine  in  broad 
outline  the  general  content  of  the  doctrine  of  the  social 
contract.    It  professes  to  offer  an  explanation  of  the 
origin  and  justification  of  government.   To  do  this  it 
starts  from  the  fundamental  assumption  that  the  past 
history  of  mankind  may  be  divided  into  two  periods, 
the  first  of  which  is  antecedent  to  the  institution  of 
government,  the  latter  subsequent  to  it.    During  the 
first  of  these  periods,  man  is  found  in  the  "state  of 
nature,"  uncontrolled  by  any  laws  of  human  imposition, 
and  subject  only  to  such  regulations  as  are  supposed 
to  be  prescribed  to  him  by  nature  itself.    Tin's  code  of 
regulations,  or  rather,  since  it  is  nowhere  written  down, 
the  spirit  by  which  such  a  code  might  be  presumed  to 
be  inspired,  is  spoken  of  as  the  law  of  nature,  or  nat- 
ural law.   This  primitive  stage  of  natural  society  man 
is  presently  compelled  to  desert.   Whether  it  be  that 


II  THE  NATURE  OF  THE  STATE 

this  ttate  is  too  idyUio  to  last,  or  whether  it  becomes 
iu  the  course  of  time  and  by  reason  of  mutual  rapacity 
too  inconvenient  to  be  tolerate<l,  is  a  point  of  dispute 
among  the  exponents  of  the  theory  themselves.     In 
either  case  man  is  led  to  substitute  for  it  a  union  w*  a 
his  fellowmen  in  which,  abandoning  the  isolation  of 
the  "natural"  individual,  all  are  joined  into  one  civil 
society  or  body  politic.    Each  now  stands  in  a  vastly 
different  relation  to  his  fellow-men.   Submitting  him- 
self to  the  joint  control  of  all,  he  receives  in  return  the 
benefit  of  the  joint  interest  of  all  in  his  protection. 
To  safeguard  the  security  of  all  members  of  the  body 
politic  (or  state),  a  code  of  Uw  is  enforced  by  aU 
against  the  possible  rapacity  of  each.  Thus  while  each 
loses  the  "  natural  liberty  "  that  he  enjoyed  in  the  ante- 
cedent  state  of  nature,  he  gains  in  return  the  security 
to  which  he  is  naturaUy  entitled,  and  which  is  now 
guaranteed  to  him  by  the  covenant  of  all  his  feUows. 
Human  law  is .  substituted  for  a  natural  law,  and  the 
individual  in  submitting  to  social  duties  finds  himself 
clothed  with  social  rights.   The  process,  or  at  any  rate 
the  result  of  it,  has  very  much  the  appearance  of  a 
contract  or  bargain  dictated  by  the  individual's  own 
interest,  an  exchange  of  obligations  in  return  for  privi- 
leges.   Whether  the  bargain  is  to  be  looked  upon  as 
one  that  actually  happened  at  a  given  time  and  place 
for  each  politically  constituted  society,  or  whether  it 
merely  expresses  the  result  or  outcome  of  a  more  grad- 
ual social  process,  is  a  matter  that  has  been  persistently 
left  in  a  half-light.    We  cannot  therefore  make  any 
general  statement  as  to  whether  those  who  have  de- 
fended the  idea  of  the  social  contract  have  viewed  it  as 


\l 


ORIGIN  OF  THE  STATE 


25 


own 


»  hiatorioal  fact,  or  only  m  an  interprttation  of  the 
nature  of  the  social  bond. 

Such  is  in  general  the  doctrine  of  the  social  con- 
tract.  A  glance  at  the  growth  and  history  of  the  doc- 
trine itself  may  serve  to  bring  out  more  saliently  the 
nature  of  the  argument  involved.    The  origin  of  the 
theory  is  to  be  found  in  the  philosophy  of  the  Greeks. 
It  is  associated  more  particularly  with  the  speculative 
thou{^-ht  of  the  period  during  which  thi;  Greek  city 
state  —  the  organized  form  under  which  Athens  and 
Sparta  reached  their  greatest  development — was  fall- 
ing into  decadence.   In  the  writings  of  Plato  and  Aris- 
totle  we  find  but  scant  sanction  for  it.  The  political 
thought  of  both  of  them  was  inspired  by  the  ideal  of 
the  city  state,  whose  importance  was  to  them  greater 
than,  and  antecedent  to,  that  of  the  individual  citizen. 
The  latter,  indeed,  only  existed  in  and  through  the 
state.   The  social  bond  with  his  fellows  was  an  essen- 
tial part  of  man's  nature.    "Man,"   runs  the  well- 
known  Aristotelian  dogma,  "is  a  political  animal." 
Society,  therefore,  being  the   primary  consideration, 
and  the  individual  existence   being  possible  only  by 
means  of  it,  the  conception  of  an  individual  dealing 
in  obligations  and  privileges,  as  a  subject  of  contract 
with  society  at  large,  was  altogether  foreign  to  the  Pla- 
tonic and  Aristotelian  system. 

With  the  Greeks  of  the  fourth  and  succeeding  cen- 
turies, however,  the  political  environment  had  alto- 
gether changed.  The  subversion  of  the  city  state  by 
the  Macedonian  and  Roman  conquests  led  the  Greek 
philosophers  to  turn  aside  from  political  speculation, 
and  to  look  upon  the  political  aspect  of  the  individual 


ae  THE  NATURE  OF  THE  STATE 

as  merely  one  of  the  accidents  of  bis  being.    In  the 
writings  of  the  Epicurean  school  we  find  the  idea  that 
laws  and  duties  imposed  on  the  individual  by  any  gov- 
ernment, whether   foreign  or  autonomous,  are  things 
which  he  accepts  for  his  own  well-being  ^;at.' -ng  thus 
into  a  kind  of  compact  or  understandinj  with  the  pow- 
ers that  be.    On  this  foundation  grew  u  •  t!ie  theory  oi 
the  social  contract.   The  system  of  the  Iiui.iu.i  1'  v,  oae 
of  whose  greatest  contributions  to  institutional  devel- 
opment has  been  to  bring  into  a  clear  light  the  con- 
ception of  obligation  by  contract,  supplied  a  further 
material  with  which  to  construct  the  completed  theory.' 
Christianity,  indeed,  inculcating  in  its  early  teachings 
the  doctrine  that  all  civil  society  had  been  the  outcome 
of  human  sin,  and  that  it  was  the  duty  of  the  Christian 
to  submit  to  the  rule  of  temporal  powers  as  a  part  of 
his  abnegation  of  self,  seemed  at  first  to  run  counter 
to  the  supposedly  equitable  bargain  of  a  social  con- 
tract.  Nevertheless  in  the  polemics  of  the  middle  ages, 
during  which  the  rival  claims  of  the  empire  and  the 
papacy  supplied  the  basis  of  political  controversy,  a 
sort  of  meeting-point  appears  between  the  doctrine  of 
a  social  contract  and  the  early  Christian  conception  of 
the  nature  of  civil  society.   The  advocates  of  the  papal 
claim  held  that  kings  and  princes  in  general,  and  hence 
the   emperor   among  them,  held  their  offices  (under 
God's  sanction)  by  reason  of  a  covenant  with  the  peo- 
l)le,  even  as  the  elders  of  Israel  covenanted  with  King 
David.*   This  view,  connected  presently  with  the  earlier 
Greek  philosophy,  gave  rise  to  a  special  form  of  con- 

'  See  in  this  connection  David  Q.  RiUbie,  Darwin  and  Hegel,  with 
Other  Philosophical  Studies.   (1893.)  *  2  Samuel,  v.  3. 


J 


ORIGIN  OF  THE  STATE 


27 


tract  theory  in  the  idea  of  a  compact  made  by  all  the 
people  with  one  person,  a  contract  between  a  king  and 
his  subjects.  To  this  special  form  of  the  general  doc- 
trine the  name  of  governmental  compact  *  has  often 
been  given. 

2.  Application  made  of  the  Theory  by  Hobbes, 
Locke,  and  Rousseau.  It  was  in  the  seventeenth 
and  eighteenth  centuries,  in  consequence  of  the  reli- 
gious and  civil  upheavals  by  which  the  political  in- 
stitutions of  Europe  were  moulded  anew,  that  the 
theory  of  contract  obtained  its  greatest  prominence. 
Hobbes  and  Locke  in  England  an'  Jean  Jacques 
Kousseau  in  France  became  its  chief  exponents.  A 
review  of  the  contract  theory  as  laid  down  by  each 
will  serve  to  show  it  in  its  completed  form.  Thomas 
Hobbes,  sometime  tutor  to  Charles  II,  and  prominent 
among  the  writers  of  the  seventeenth  century  for  his 
works  on  moral  and  political  philosophy,  offers  in  his 
"  Leviathan  "  (1651)  a  striking  exposition  of  the  con- 
tract theory.  The  foundation  of  his  theory  lies  in  his 
estimate  of  man's  essential  nature.  Man,  according  to 
Hobbes,  is  an  altogether  selfish  and  self-seeking  ani- 
mal. The  sole  motive  for  his  actions  proves  on  analysis 
to  be  the  wish  to  satisfy  his  own  appetites  and  desires ; 
even  such  a  quality  as  benevolence  is  seen  on  examina- 
tion to  result  from  man's  "  love  of  power  and  delight 
in  the  exercise  of  it."  Compassion  is  only  "grief  at 
the  calamities  of  others  from  the  imagination  that  the 
like  calamity  may  befall  ourselves."  Man  is  there- 
fore by  nature  anything  but  a  social  animal ;  indeed 
he  finds  "nothing  but  grief   in  the  company  of  his 

»  See  W.  W.  WiUoughby,  The  Nature  of  the  State  (1896),  oh.  it. 


28  THE  NATURE  OF  THE  STATE 

fellows,"  all  being  equally  rapacious  and  self-seeking. 
The  state  of  nature  is  consequently  a  state  of  war,  the 
war  of  each  against  all;  it  is  a  state  of  "continual 
fear  and  danger  of  violent  death  ;  and  the  life  of  man 
solitary,  poor,  nasty,  brutish,  and  short."  From  this 
'•edition  man  is  driven  by  evident  necessity  to  join 
iiimself  with  his  fellows  under  some  common  authority, 
universal  submission  to  any  form  of  control,  however 
despotic,  being  preferable  to  the  mutual  warfare  of  the 
state  of  nature.  In  the  contract  which  men  thus  make 
among  themselves  all  agree  to  submit  to  a  single  au- 
thority, which  Hobbes  interprets  to  be  that  of  a  king 
or  absolute  sovereign.  But  the  latter,  from  the  nature 
of  the  case,  though  benefited  by  the  contract,  is  not  a 
party  to  it.  Such  a  contract  thus  differs  from  the  gov- 
ernmental compact  referred  to  above  in  that  the  king, 
being  no  party  to  it,  cannot  break  it.  It  becomes  irre- 
vocably binding  on  all  the  community  as  a  perpetual 
social  bond.  In  this  way  the  theory  is  used  by  Hobbes 
as  a  defense  of  absolute  monarchy,  the  philosopher 
appearing  as  the  theoretical  apok  f  the  Stuart 

despotism. 

Very  different  is  the  presentation  ot  the  contract  by 
Hobbes's  illustrious  contemporary  John  Locke.  With 
the  latter  the  state  of  nature  is  not  one  of  universal 
war;  it  is,  however,  inconvenient  and  unsatisfactory. 
There  is  in  the  first  place  the  standing  "  want  of  an 
established,  settled,  known  law,  the  'law  of  nature' 
being  obscured  since  men  are  biased  by  Ir  interest 
as  well  as  ignorant  for  want  of  study  of  it."  Nor  is 
there  "  a  known  and  indifferent  judge,"  nor,  finally,  an 
active  power  to  punish  those  who  contravene  the  law 


ORIGIN  OF  THE  STATE 


29 


of  nature.  For  these  reasons,  men  are  led  to  abandon 
the  "  freedom  "  of  the  state  of  nature,  and  submit  to 
the  restraint  of  civil  society.  In  the  contract  which 
they  make,  however,  the  monarch  to  whom  they  agree 
to  submit,  is  himself  a  party.  The  contract  as  presented 
by  Locke  does  not  precisely  correspond  to  the  govern- 
mental compact,  since  it  not  only  establishes  the  author- 
ity of  the  monarch,  but  also  joins  the  members  of  the 
community  by  mutual  covenant  into  a  body  politic* 
It  differs  on  the  other  hand  from  the  contract  of  Hobbes 
in  that  the  monarch  is  a  party  to  it,  and  holds  his 
office  only  by  virtue  of  his  compliance  with  the  terms 
of  the  contract.  Should  the  king  break  these,  the 
contract  is  dissolved.  In  this  form  the  theory  is  made 
the  basis  of  a  system  of  limited  monarchy,  and  Locke 
stands  as  the  apologist  of  the  English  revolution  of 
1688.  The  charge  of  having  endeavored  to  "  subvert 
the  original  contract  between  king  and  people,"  which 
was  the  indictment  of  the  Convention  Parliament 
against  King  James  II,  ghows  the  basis  of  Locke's  later 
defense  of  the  revolution  which  was  embodied  in  his 
"  Treatises  on  Government "  (1690). 

Strongly  contrasted  with  each  of  these  is  the  stand- 
point of  the  great  French  writer  of  the  eighteenth  cen- 
tury, Jean  Jacques  Rousseau.  Rousseau's  book,  the 
"  Contrat  Social"  (1762),  may  be  taken  as  the  exposi- 
tion of  the  theory  dominant  in  the  eighteenth  century. 
With  Rousseau  the  state  of  nature  appears  as  an  era 

*  The  late  Professor  Ritchie  claimed  that  the  cnstomary  contrast 
between  Locke  and  Ronsseau  is  erroneous,  the  essence  of  Locke's  so- 
cial contract  being  the  incorporation  of  society  and  not  the  appointment 
of  a  king.  See  easay  "  The  Social  Contract  Theory,'  Politici^U  Science 
Quarterly,  1891. 


30 


THE  NATURE  OF  THE  STATE 


of  almost  idyllic  felicity.'  The  simple  savage  endowed 
with  a  health  and  vigor  as  yet  unimpaired  by  the  ener- 
vating influences  of  civilization  suffices  easily  for  his 
own  restricted  felicity.  To  this  hypothetical  state  of 
nature  Rousseau  appeals  for  the  solution  of  the  prob- 
lems of  civilized  life  in  regard  to  education,  morals, 
etc.  As  the  numbers  of  the  race  increase,  this  primitive 
condition  becomes  no  longer  advantageous.  The  ob- 
stacles which  injure  man's  preservation  in  the  state  of 
nature  grow  more  powerful  than  the  forces  which  each 
individual  can  employ  to  maintain  himself  in  this  con- 
dition. Man  is  thus  driven  to  relinquish  his  "  natural 
liberty,"  that  rather  illusory  "  umlimited  right  to  every- 
thing he  is  able  to  obtain,"  and  by  a  union  with  his 
fellows  to  substitute  civil  for  natural  liberty.  To  do 
this  he  is  driven  to  find  a  "  form  of  association  which 
may  defend  and  protect  with  all  the  force  of  the  com- 
munity the  person  and  property  of  each  associate  and 
by  which  each,  being  united  to  all,  yet  only  obeys  him- 
self and  remains  as  free  as  before."  This  is  the  social 
contract,  a  covenant  of  each  with  all.  The  king  or 
monarch  (or  governing  body  of  any  kind)  is  not  a 
party  to  the  bargain,  nor  is  the  tenure  of  office  of  the 
ruler  or  rulers  one  of  the  terms  of  the  contract.  The 
king  is  merely  a  commissioned  officer  who  holds  his 
position  at  the  dictates  of  that  general  will  (jtolonte 
generale)  which  emerges  as  the  sovereign  power  in 
consequence  of  the  contract.  Any  king  is  of  course 
deposable  if  the  general  will  demands  it.  With  Rous- 
seau the  doctrine  of  the  social  contract,  which  in  the 


'  Rousseau's  views  on  the  state  of  nature  are  found  iu  detail  in  his 
Discours  aw  Vlnigaliti. 


ORIGIN  OF  THE  STATE 


31 


hands  of  Hobbes  was  made  a  weapon  of  defense  for 
absolutism,  and  with  Locke  a  shield  for  constitutional 
limited  monarchy,  becomes  the  basis  of  popular  sover- 
eignty. 

3.  Criticism  of  the  Theory.  From  the  exposition 
of  the  theory,  let  us  turn  to  the  question  of  its  criti- 
cisn>.  Attacked  even  in  the  eighteenth  century  by 
David  Hume,'  it  has  undergone  a  series  of  assaults  at 
the  hands  of  the  publicists  of  the  nineteenth  century,  as 
the  result  of  which  it  may  be  now  looked  upon  as  ex- 
ploded. Jeremy  Bentham  says  of  it,  "  I  bid  adieu  to  the 
original  contract  and  I  left  it  to  those  to  amuse  them- 
selves with  tliis  rattle  who  could  think  they  need'^d  it." 
J.  K.  Bluntschli,  one  of  the  most  distinguished  German 
writers  on  political  science  in  the  nineteenth  century, 
pronounces  the  theory  not  only  unhistorical  and  illogi- 
cal, but  even  "  in  the  highest  degree  dangerous,  since 
it  makes  the  State  and  its  institutions  the  product  of 
individual  capri>.  ."  - 

Of  tliC  arguments  directed  against  the  social  contract, 
the  most  evident  and  the  most  unanswerable  is  that  the 
theory  has  no  foundation  in  history.  There  is  no  re- 
corded instance  of  a  group  of  savages,  previously  with- 
out any  political  organization  or  political  ideas,  deliber- 
ately meeting  together  to  supply  the  defect.  Nor  is  it 
rational  to  suppose  that  any  such  deliberate  first  crea- 
tion of  the  state  c.;uld  have  happened  ;  for  this  presup- 
poses in  the  minds  of  its  founders  the  conception  of 
social  organization  before  any  such  phenomenon  had 
existed.    They  must  have  known  what  a  government 

*  Hume,  Philosophical  Works  (.'ixjinburgh,  1854),  toI.  iii,  essay  xiL 

*  Bluotacbli,  Tlieory  of  the  State,  bk.  iv,  chap.  ix. 


32 


THE  NATURE  OF  THE  STATE 


was  before  they  cculd  make  one.  As  against  this  it 
is  urged  that  history  does  furnish  us  instances  of  what 
may  be  termed  the  formation  of  a  social  contract,  not 
indeed  among  men  hitherto  ignorant  of  government, 
hut  among  groups  of  people  separated  from  the  state 
under  which  they  had  lived,  and  desirous  of  forming  a 
new  organization  by  deliberate  action.    Most  famous  of 
these  instances  is  the  case  of  the  P'iritan  emigrants  of 
the  Mayflower.    The  familiar  document  drawn  up  and 
signed  by  them  while  still  on  board  ship  runs,  "  We  .  .  . 
do,  by  these  presents,  solemnly  and  mutually  in  the 
presence  of  God  and  one  another,  covenant  and  com- 
bine  ourselves  together  into  a  civil  body  politic,  for  our 
better  ordering  and  preservation."    "When  Carlyle 
objects,"  says  Professor  Ritchie,   "that  Jean  Jacques 
could  not  fix  the  date  of  the  social  contract,  it  would  at 
least  be  a  plausible  retort  to  say  that  the  date  was  the 
1 1th  of  November,  1620." «  Further  examples  are  found 
during  the  same  era  of  American  history  in  the  Provi- 
dence agreement  (1636)  and  the  plantation  covenant 
of  New  Haven  (1638).   It  has  even  been  urged  that 
the  written  constitutions  of  the  United  States  and  its 
component  commonwealths  are  historical  instances  of 
social  contracts.   But  in  all  of  these  cases  we  have  at 
best  not  the  institution  of  a  state   among  a  people 
hitherto  devoid  of  political  organization,  but  the  estab- 
lishment of  a  particular  government  by  persons  already 
accustomed  to  the  rights  and  duties  of  civil  society.    If 
the  social-contract  theory  merely  meant  that  in  some 
cases  particular  governments  are  established  by  joint 
and  general  action,  it  would  be  hard  to  contradict  it. 

^  Ritchie,  Political  Science  Qua:  '.erly,  1891. 


ORIGIN  OF  THE  STATE 


33 


It  is,  however,  possible  to  abandon  the  doctrine  of  the 
social  contract  as  representing  a  historical  occurrence, 
and  yet  to  adhere  to  it  as  expressing  the  proper  inter- 
pretation of  the  relations  between  the  individual  and 
the  state.  Viewed  in  this  light  it  is  no  longer  a  histori- 
cal but  an  ai  ilytical  conception.  It  proposes  as  the 
justification  of  the  state  a  voluntary  exchange  of  services 
between  the  individual  and  the  political  community. 
The  individual  renders  obedience  and  receives  protec- 
tion. It  is  in  this  form  that  we  find  the  contract  doctrine 
maintained  by  many  political  philosophers  of  the  early 
nineteenth  century.  Such  for  instance  is  the  standpoint 
of  Kant.*  The  contract,  he  says,  is  "  not  to  be  assumed 
as  a  historical  fact,  for  as  such  it  is  not  possible,  but  it 
is  a  rational  idea  which  has  its  practical  reality  in  that 
the  legislator  may  so  order  his  laws  as  if  they  were  the 
outcome  of  a  social  contract.  The  latter  becomes  in 
consequence  'the  criterion  of  the  equity  of  every  public 
law.' " '  Yet  even  as  an  ideal  of  social  relations,  the 
contract  doctrine  has  been  assailed,  one  may  say  almost 
overwhelmed,  with  hostile  criticism.  The  individual, 
it  is  argued,  is  joined  to  the  state  not  by  a  voluntary 
conjunction  but  by  an  indissolvable  bond.   The  relation 

*  See  Kant's  treatise  On  the  Common  Saying,  etc.  A  good  exposition 
of  Kant's  views  in  regard  to  the  nature  of  the  state  is  given  by  Pro- 
fessor Panlsen,  Immanuel  Kant,  New  York,  1902,  pp.  34;i-3Cl. 

'  It  is  in  this  modified  form  that  the  doctrine  of  the  social  contract 
becomes  the  basis  of  the  benefit  theory  of  taxation ;  the  individual  is 
hereby  called  upon  to  contribute  to  the  public  needs  not  in  accordance 
with  his  "  faculty  "  or  ability  to  contribute,  but  in  accordance  with  the 
amount  of  benefit  or  protection  that  he  receives.  In  practice  either 
theory  would  tax  the  rich  more  heavily  than  the  poor ;  but  the  fun- 
damental conceptions  of  the  relation  of  the  individnal  and  the  state 
implied  in  the  two  theories  are  essentially  opposed. 


ai 


THE  NATURE  OF  THE  STATE 


is  a  compulsory  one.  Each  of  us  is  born  into  the  state ; 
we  are  part  of  the  state  and  the  state  is  part  of  us. 
The  state  is  not  a  mutual  assurance  society,  member- 
ship in  which  is  a  matter  that  the  citizen  may  accept 
or  reject.  J'  ir  is  the  true  measure  of  our  social  duties 
to  be  found  in  the  extent  of  benefit  that  we  receive 
from  society.  Our  common  experience  of  the  nature 
of  the  state  indicates  much  that  conflicts  with  the  nar- 
row view  suggested  by  the  quid  pro  quo  of  a  contract 
relation.  Patriotism  —  the  sacrifice  o.'  the  iudividual's 
interests  to  the  claims  of  the  community  —  we  account 
one  of  the  highest  of  virtues.  We  look  to  the  state  as 
the  especial  guardian  of  the  poor  and  the  helpless.  We 
call  upon  it  to  act  not  for  the  present  generation  alone, 
but  for  the  welfare  of  those  which  are  to  come.  The 
state,  in  fine,  stands  in  its  ideal  aspect  for  the  collec- 
tive moral  effort  of  the  whole  community.  The  line  of 
thought  here  suggested  finds  its  extreme  expression  in 
what  is  called  the  "  organic  theory  of  the  stat","  a  doc- 
trine that  will  be  examined  in  a  later  chapter. 

4.  The  Theory  of  Divine  Origin.  The  import- 
ance of  the  social-contract  theory  has  entitled  it  to  a 
.'omewhat  elaborate  discussion.  Of  the  other  fallacious 
doctrines  in  question,  the  two  principal  ones,  the  the- 
ory of  the  divine  origin  of  the  state  and  the  theory  of 
force,  may  be  more  briefly  mentioned.  The  theory  of  the 
divine  origin,  known  in  familiar  form  as  "  the  divine 
right  of  kings,"  may  now  be  regarded  as  entirelj 
extinct  in  political  theory.  It  belongs  especially  to 
the  period  of  the  sixteenth  and  seventeenth  centuries. 
Originating  after  the  great  mediieval  controversy  of 
the  Papacy  and  Empire  had  subsided,  it  represents  the 


.i'' 


ORIGIN  OF  THE  STAT£ 


35 


resistance  offered  by  the  constituted  monarchical  gov« 
ernments  to  the  growing  ideas  of  popular  sovereignty. 
Its  essential  meaning  is  that  each  and  every  existing 
state   represents  an   institution   of  deliberate   divine 
creation.     Under  this  theory  the  government,  or  one 
may  say  the  monarch,  since  the  doctrine  was  directed 
towards  the  defense  of  the  monarchical  system,  repre- 
sents a  direct  divine  agency  against  whom  no  supposed 
principle  of  individual  rights  can  be  valid.   In  a  cer- 
tain sense  it  is  of  course  very  generally  held  that  all 
human  institutions  represent  the  controlling  power  of 
the  Deity.     But  the  theory  of  divine  right  goes  much 
tarther  than  this.   It  assumes  the  Deity  to  have  vested 
political  power  in  a  special  way,  and  by  special  inter- 
vention,  and  to  have  seen  fit  to  deny  political  suprem- 
acy to  the  mass  of  the  community.     Such  works  as 
the  "Patriarca"  of   Sir   Robert  Filmer,  a  parasitic 
apologist  of  the  later  Stuarts,  reflect  the  theory  in  its 
extreme  form,  the  paternal  power  vested  at  the  crea- 
tion in  Adam  being  here  supposed  to  pass  by  descent 
to  the  kings  and  princes  of  Europe.   The  theory  as 
such  needs  no  longer  a  serious  refutation.   It  has,  how- 
ever, been  pointed  out  by  several  critics  of  this  doctrine 
that  it  has  left  deep  traces  in  the  underlying  political 
thought  of  European  nations.   The  idea  of  kingship  as 
having  a  peculiar  divine  sanction  —  the  "  divinity  that 
doth  hedge  a  king  "  —  is  by  no  means  an  extinct  ele- 
ment in  the  thought  of  many  people  both  in  Great 
Britain  and  continental  Europe.^ 

5.  The  Theory  of  Force.   Finally,  we  may  men- 

1  See  in  this  connection  Walter  Bagehot,  The  English  Constitution, 
ch.  iii. 


86 


THE  NATURE  OF  THE  STATE 


tion  among  the  erroneous  doctrines  in  explanation  of 
the  origin  and  meaning  of  the  state  the  theory  of 
force.  Here,  again,  the  same  theory  appears  both  as  a 
historical  interpretation  of  the  rise  of  the  state  dnd  as  a 
rational  justification  of  its  being.  Historically  it  means 
that  government  is  the  outcome  of  human  aggression, 
that  the  beginnings  of  the  ctate  are  to  be  sought  in  the 
capture  and  enslavement  of  man  by  man,  in  the  con- 
quest and  subjugation  of  the  feebler  tribes,  and,  gener- 
ally speaking,  in  the  self-seeking  domination  acquired 
by  superior  physical  force.  The  progressive  growth 
from  tribe  to  kingdom,  and  from  kingdom  to  empire,  is 
but  a  continuation  of  the  same  process.  Such  a  point 
of  view  is  frequent  with  the  fathers  of  the  church  and 
the  theologians  of  the  middle  ages,  by  whom  the  ori- 
gins of  earthly  sovereignty  are  decried  in  order  that  its 
subordination  to  the  supremacy  of  the  spiritual  power 
may  be  the  more  evident.  Gregory  VII  wrote  (a.  d. 
1080),  "  Which  of  us  is  ignorant  that  kings  and  lords 
have  had  their  origin  in  thase  who,  ignorant  of  God, 
by  arrogance,  rapine,  perfidy,  slaughter,  by  every  crime 
with  the  devil  agitating  as  tha  prince  of  the  world, 
have  contrived  to  rule  over  their  fellow  men  with  blind 
cupidity  and  into        jle  presumption."  * 

In  modem  times  we  see  much  the  same  view  ad- 
vanced for  a  very  difiPerent  purpose  in  the  earlier 
political  writings  of  Herbert  Spencer."  "  Government," 
he  says,  "  is  the  offspring  of  evil,  bearing  about  it  the 
marks  of  its  parentage."   With  the  churchmen  the  tem- 

>  Otto  Gierke,  Political  Theories  of  the  Middle  Age,  tniulated  by 
Professor  M»itlan(]  (1900). 
'  See  Socio/  Statics  (1869). 


„<" 


'^ 


ORIGIN  OF  THE  STATE 


37 


poral  power  was  defamed  for  the  benefit  of  the  «piritaal 
authoritieB;  with  Spencer  and  the  still  more  extreme 
writers  of  the  "anarchistic"  school,  the  maintenance 
of  the  rights  of  the  individual  man  is  the  object  pur- 
sued.    We  find  the  theory  of  force  elaborated  in  detail 
by  Marx,  Engels.and  the  writers  of  the  German  social- 
istic  group.    Here  the  doctrine  assumes  a  slightly  dif- 
ferent form.   The  growth  of  the  state  is  to  be  attrib- 
uted  to  the  process  of  aggressive  exploitation,  by  means 
of  which  a  part  of  the  community  has  succeeded  in  de. 
frauding  their  fellows  of  the  just  reward  of  their  labor. 
Existing  governments  represent  merely  the  coercive 
organization  which  serves  to  hold  the  workers  in  bond- 
age.«   The  socialist  writers  have  no  fault  to  find  with 
the  abstract  existence  of  a  state  or  coercive  authority. 
Their  objection  is  directed  against  the  particular  form 
of  the  present  state,  which  they  ascribe  to  its  iniqui- 
tous historical  origin.   As  against  the  theory  of  force  in 
general  it  can  with  propriety  be  advanced  that  it  errs 
in  magnifying  what  has  been  only  one  factor  in  the  evo- 
lution  of  society,  into  the  sole  controlling  force.    That 
government  has  in  part      .n  founded  en  aggression  no 
one  will  readily  deny,    liut  as  we  shaU  presently  see, 
Its  mstitution  haa  owed  much  to  forces  of  an  entirely 
different  character.    Even  a  "population  of  devils" 
Kant  has  said,  "would  find  it  to  their  advantage  to 
establish  a  coercive  state  by  general  consent." 

The  force  theory  has  also  played  some  part  in  politi- 
cal  thought,  not  as  a  historical  account  of  the  rise  of 
the  state,  but  as  a  means  of  its  justification.   Stated 


in 


Hf  the  Communut  Party,  written  by  Marx  and  Engeb  in  1848. 


as  THE  NATURE  OF  THE  STATE 

its  crudest  form,  such  a  doctrine  is  equivalent  to  the 
proposition  that  might  is  right.  "The  individual," 
writes  Jellinek,  in  elucidation  of  this  point  of  view, 
"must  submit  himself  to  it  since  he  perceives  it  to 
be  an  unavoidable  force  iNaturgewalt). "    Bluntschh 
even  maintains  that  the  doctrine  has  "  a  residuum  of 
truth,  since  it  makes  prominent  one  element  which  is 
indispensable  to  the  state,  namely  force,  and  has  a  cer- 
tain  justification  as  against  the  opposed  theory  (that 
of  contract)  which  bases  the  state  upon  the  arbitrary 
will  of  individuals,  and  leads  logically  to  political  ira- 
potence."  '  But  in  plain  matter  of  fact,  and  apart  from 
the  refinements  of  abstraction,  the  proi^sition  seems 
hopelessly  illogical.   As  was  long  ago  pointed  out  by 
Rousseau,  the  right  that  is  conferred  by  might  can 
reasonably  be  said  to  last  only  as  long  as  the  might 
which  confers  it.    Submission  to  the  state  would  there- 
fore only  be  warranted  as  long  as  one  was  unable  to 
do  anything  else  than  submit.  The  amount  of  jusUfica- 
tion  involved  in  this  is  less  than  nothing 

The  theory  of  force,  as  a  defense  of  the  governmental 
authority,  assumes  quite  a  different  aspect  at  the  hands 
of  Ludwig  von  Haller.   Writing  at  a  time  when  the 
great  wars  of  the  Revolutionary  and  Napoleonic  era  had 
overwhelmed  the  sanguine  outlook  of  the  eighteenth 
century  enlightenment  in  the  disillusion  of  a  devastated 
continent,  he  represents  a  natural  revulsion  from  the 
deification  of  popular  sovereignty  towards  the  princi- 
ples of  monarchical  authority.    With  Haller  govern- 
ment  is  based  upon  "the  natural  law  that  the  stronger 
rules."   But  the  principle  involved  is  one  of  benevo- 
1  Theory  of  the  Slate,  bk.  W,  chap.  viiL 


ORIGIN  OF  THE  STATE  39 

lenoe,  not  of  repression.    Tho  fundamental  bond  of 
human  re  ationsbip  and  social  cohesion  is  tho  depend- 
ence of  the  weak  upon  the  strong.   Obedience  is  given 
on  the  one  hand,  protection  on  the  other.   We  see  this 
in  the  relation  of  parent  and  child,  husband  and  wife, 
master  and  servant.   This  is  the  true  relation  of  the 
prince  and  the  subject.  The  position  is  not  one  created 
hy  a  voluntary  act ;  it  is  not  a  contract ;  it  is  a  part  of 
tlie  fundamental  order  of  the  universe.    "We  njight  as 
well  say,"  Haller  contends,  "  that  there  is  a  contract 
between  a  man  and  the  sun,  that  he  will  allow  himself 
to  be  warmed  by  it."   This  universal  law  of  the  sub- 
mission of  the  weak  to  the  strong  is  thus  made  the 
basis  of  a  theory  of  absolute  monarchy  and  unlimited 
submission.   Though  clothed  in  a  benevolent  form  it 
amounts  to  the  assertion  that  sovereign  power  is  the 
disposable  property  of  the  prince.   As  such  it  needs  no 
refutation.* 

READINGS  SUGGESTED 
Willoughby,  W.  W.,  Nature  of  the  State  (1896),  chaps,  iii,  iv, 

T,  vi. 
Burgess,  J.  W.,  Political  Science  and  Conatitutional  Law  (1808), 

Tul.  i,  bk.  ii,  chap.  ii. 
Rousseau,  J.  J.,  Social  Contract  (1762),  bk.  i,  chaps,  i-ix. 
Pollock,   Sir  Frederick,    History  of   the    Science    of    Politics 

(1900),  chap.  iii. 

FURTHER  Al'TIIORITIES 

Hooker,  R.,  Ecclesiastical  Polity  (1594). 

Locke,  John,  Treatises  on  Civil  Government  (1690). 

1  Von  Haller's  Restoration  of  Political  Science  appeared  in  six  vol- 
nmes,  181ft-1834.  The  substance  of  his  "patrimonial  theory"  U  dis- 
cussed by  Paul  Janet,  Uisiuire  de  la  Science  Politique,  vol.  ii,  and  by 
C.  Merriam,  Theory  of  Sovereignty,  chap.  iv. 


40 


THE  NATURE  OF  THE  STATE 


Hobbet,  T.,  Leviathan  (1661). 

Ritchie,  D.  6.,  Darwin  and  Hegel  (1893). 

Hume,  D.,  Essays  (1741-1742). 

Graham,  W.,  English  Political  Philosophy  (1899)  (Hobbei,  Locke, 

Burke,  pp.  1-174). 
Lowell,  A.  L.,  Essays  on  Government  (No.  IV.),  1889. 


CHAPTER  III 

THE  TRUE  ORIGIN  OF  THE  STATE 

1.  The  Historical  or  Evolutionary  View  of  the  State.  —  2.  The  Patri- 
archal and  Matriarchal  Theories.  —  3.  Course  of  Development :  the 
Aristotelian  Cycle. — 4.  Military  and  Economic  Factors.  —  5.  Soma 
General  Features  of  Political  Evolution. 

1.  The  Historical  or  Evolutionary  View  of  the 
State.  The  fallacious  theories  presented  in  the  last 
chapter  may  be  considered  to  prepare  the  way  for  a 
more  correct  estimate  of  the  origin  of  the  state.  The 
view  held  by  the  best  modem  writers  may  be  described 
as  the  historical  or  evolutionary  theory  of  the  state. 
By  this  is  meant  that  the  institution  of  the  state  is  not 
to  be  referred  back  to  any  single  point  of  time ;  it  is 
not  the  outcome  of  any  single  movement  or  plan.  The 
state  is  not  an  invention :  it  is  a  growth,  an  evolution, 
the  result  of  a  gradual  process  running  throughout 
all  the  known  history  of  man,  and  receding  into  the 
remote  and  unknown  past.  "  The  proposition  that  the 
State  ia  a  product  of  history,"  says  Professor  Burgess, 
*' means  that  it  is  a  gradual  and  continuous  devel- 
opment of  human  society  out  of  a  grossly  imperfect 
beginning  through  crude  but  improving  forms  of  mani- 
festation towards  a  perfect  and  universal  organization 
of  mankind."  It  is  thus  altogether  erroneous  to  think 
of  man  as  having  in  the  course  of  his  evolution  attained 
to  a  full  physical  and  mental  development,  and  then 
looking  about  him  to  consider  the  advisability  of  in< 


42 


THE  NATURE  OF  THE  STATE 


1  ! 


venting  a  government.  We  might  as  well  imagine  man, 
mentally  and  physically  complete,  deciding  that  the 
time  had  come  for  the  invention  of  language,  in  order 
to  satisfy  his  growing  need  of  communicating  with  his 
fellows.  Just  as  language  has  been  evolved  from  the 
uncouth  gibberings  of  animals,  so  has  government  had 
its  origins  in  remote  and  rudimentary  beginnings  in 
prehistoric  society.  Man's  capacity  for  associated  ac- 
tion and  social  relationships  of  all  kinds  has  proceeded 
by  a  gradual  development  nS  ^  with  that  of  his 
physical  and  intellectual  apt^ 

2.  The  Patriarchal  and  Matriarchal  Theories. 
This  general  idea  or  principle  of  a  gradual  and  pro- 
gressive evolution  seems  clear  enough.  Yet  if  we  at- 
tempt to  go  further  and  map  out  the  stages  of  man's 
social  development,  the  most  serious  difficulties  are 
encountered.  The  simplest  and  earliest  method  of  offer- 
ing a  historical  account  of  the  genesis  of  social  amal- 
gamation was  found  in  taking  the  family  to  represent 
the  primal  unit  of  social  history.  The  control  exercised 
by  a  father  over  his  children,  which  presently  expands 
into  the  control  of  a  patriarch  over  his  descendants, 
was  supposed  to  represent  the  origin  of  human  govern- 
ment. It  indicated  at  the  same  time  a  justification 
of  the  state  as  proceeding  from  the  purely  "  natural " 
institution  of  the  family.  First  a  household,  then  a 
patriarchal  family,  then  a  tribe  of  persons  of  kindred 
descent,  and  finally  a  nation, — so  runs  the  social  series 
erected  on  this  basis.  This  attempt  to  refer  the  insti- 
tution of  government  to  the  authority  of  an  original 
father  of  a  family  is  known  as  the  patriarchal  theory. 
it  has  sought  to  defend  itself  by  reference  partly  to 


THE  TRUE  ORIGIN  OF  THE  STATE 


43 


historical  instances,  partly  to  current  facts.  We  find 
it  as  early  as  in  the  writings  of  Aristotle,  the  first  book 
of  whose  "  Politics"  contains  a  statenient  of  the  theory. 
"  The  family,"  says  Aristotle,  "  arises  first ;  .  .  .  when 
several  families  are  united,  and  the  association  aims  at 
something  more  than  the  supply  of  daily  needs,  then 
comes  into  existence  the  village.  .  .  .  When  several 
villages  are  united  in  a  single  community  perfect  and 
large  enough  to  early  or  quite  self-sufiicing,  the  state 
(ttoAis)  comes  into  existence."  Since  Aristrtle's  time 
the  same  view  has  been  presented  by  a  variety  of 
writers  as  offering  a  valid  account  of  the  origins  of 
political  institutions.  The  case  of  such  communities 
as  the  nomadic  tribes  of  central  Asia  is  adduced  in 
proof  of  the  correctness  of  the  view. 
I  The  historical  researches  of  the  nineteenth  century, 

however,  have  rendered  it  impossible  to  accept  the 
patriarchal  theory  as  offering  a  universal  or  final  solu- 
tion of  the  problem  of  the  origin  of  government.  The 
critics  of  this  theory  have  conclusively  shown,  in  tn« 
first  place,  that  the  T)atriarchal  regime  has  not  every- 
where appeared  as  the  foundation  of  later  institutions, 
and,  in  the  second  place,  that  even  where  it  has  ap- 
peared, it  has  not  of  necessity  been  the  oldest  form  of 
social  regulation  which  may  be  traced  in  prehistoric 
times.  Such  has  been  the  substance  of  the  results 
reached  by  J.  F.  McLennan  and  others  who  have 
sought  to  substitute  a  rival  hypothesis  under  the  title 
of  the  matriarchal  theory.  By  this  is  implied  an  alto- 
gether different  social  arrangement  from  that  suggested 
by  the  supposition  of  a  primitive  family.  Previous  to 
the  patriarchal  or  family  group  men  are  found  living 


44 


THE  NATURE  OF  THE  STATE 


in  '*  hordes  "  or  "  p&cks,"  in  which  the  usual  relations 
of  husband  and  wife  do  not  exist.  Relationship,  in- 
stead  of  being  traced  through  the  father,  is  traced  in 
such  a  primitive  society  altogether  through  females. 
The  nature  of  this  relationship  may  be  understood  by 
referring  to  the  account  given  by  Mr.  Edward  Jenks 
in  his  recent  "History  of  Politics."*  Mr.  Jenks  de- 
scribes as  typical  of  primitive  society  the  arrangement 
still  existent  among  the  natives  of  Australia  and  the 
Malay  Archipelago.  "  It  is  the  custom,"  he  says,  *'  to 
speak  of  the  Australian  and  other  savages  as  living 
in  tribes ;  ...  it  would  really  be  better  to  call  it  the 
*  pack,'  for  it  more  resembles  a  hunting  than  a  social 
organization.  All  its  menrbers  are  entitled  to  share  in 
the  proceeds  of  the  day's  chase,  and,  quite  naturally, 
they  camp  and  live  together  .  .  .  [but]  the  real  social 
unit  of  the  Australians  is  not  the  *  tribe '  but  th^  totem 
group.  .  .  .  The  totem  group  is  primarily  .  ^y  of 
persons  distinguished  by  the  sign  of  some  natur  )b- 
ject  such  as  an  animal  or  a  tree,  who  may  not  luier- 
marry  with  one  another.  '  Snake  may  not  marry  Snake. 
Emu  may  not  marry  Emu.'  This  is  the  first  rule  of 
savage  social  organization.  .  .  .  The  other  side  of  the 
rule  is  equally  startling.  The  savage  may  not  marry 
within  his  totem,  but  he  must  marry  into  another  totem 
specially  fixed  for  him.  More  than  this,  he  not  only 
marries  into  the  specified  totem,  but  he  marries  the 
whole  of  the  women  of  that  totem  in  his  own  genera- 
tion. ...  Of  course  it  must  not  be  supposed  that  this 
condition  of  marital  community  really  exists  in  prac- 
tice. As  a  matter  of  fact  each  Australian  contents  him- 
l  B.  Jenki,  Hittory  of  Politics  (1900). 


THE  TRUE  ORIGIN  OF  THE  STATE 


40 


self  with 


two 


from  his 


marriage  totem." 
Under  such  a  system,  **  as  far  as  there  is  any  recogni- 
tion of  blood  relationship  at  all  it  is  through  women 
and  not  through  men."  Several  writers  on  the  matri* 
archal  theory  have  considered  that  in  this  primitive 
stage  of  society  not  only  is  descent  traced  through  the 
mother,  and  property  passed  in  the  female  line,  but  the 
social  group  is  ruled  by  the  women,  not  the  men.  Such 
a  condition  of  things  is  actually  found,  for  instance, 
among  the  Hovas  of  Madagascar.  But  as  a  hypothesis 
of  a  universal  social  arrangement  it  has  been  quite 
refuted. 

The  exponents  of  the  matriarchal  theory  —  under- 
stood  here  in  the  narrower  sense  of  a  system  of  re- 
lationship  and  not  of  female  rule  —  present  it  as  the 
universal  primitive  condition  of  mankind.  Out  of  it, 
they  tell  us,  the  patriarchal  system  has  emerged 
through  the  adoption  of  settled  pastoral  and  agricul- 
tural habits  in  place  of  the  purely  wandering  or  hunt- 
ing life  of  primitive  man.  That  such  a  system  of  tribal 
relationship  as  is  here  described  exists  in  some  savage 
communities  of  to-day,  and  has  often  existed  in  the  past, 
seems  beyond  a  doubt.  There  does  not,  however,  seem 
any  adequate  proof  for  regarding  it  as  the  universal 
and  necessary  beginning  of  society.  Indeed  social  his- 
tory does  not  seem  to  lend  itself  to  so  simple  a  formula 
of  successive  development.  No  single  form  of  the  prim- 
itive family  or  group  can  be  asserted.  Here  the  matri- 
archal relationship,  and  there  a  patriarchal  regime  is 
found  to  have  been  the  rule,  —  either  of  which  may 
perhaps  be  displaced  by  the  other.  Indeed  one  has  to 
admit  the  fact  that  there  is  no  such  thing  as  a  "  be- 


46 


THE  NATURE  OF  THE  STATE 


ginning "  of  human  society.  All  that  can  he  asserted 
is  that  in  the  course  of  time  the  monogamic  family 
tended  to  hecome  the  dominant  form,  though  even  until 
to-day  it  has  not  altogether  supplanted  other  forms  of 
organization.  This  does  not  say,  however,  that  paternal 
control  of  the  family  is  to  be  looked  on  as  the  one 
necessary  beginning  of  government  and  social  control. 
For  it  must  have  happened  in  many  instances  that 
social  authority  of  a  rudimentary  sort  existed  where  as 
yet  the  monogamic  family  was  unknown.* 

3.  Cotursa  of  Development:  the  Aristotelian 
Cycle.  The  earlier  stages  of  the  social  evolution  seem 
therefore  to  lend  themselves  but  poorly  to  any  scheme 
of  orderly  and  uniform  progression.  Much  the  same 
difficulty  meets  us  in  trying  to  reduce  the  successive 
stages  of  historical  development  to  any  general  plan. 
It  is  clear  that  between  the  rudimentary  form  of  social 
control  exercised  by  the  chief  of  a  primitive  tribe,  and 
the  complex  and  effective  organization  of  a  modem 
civilized  government,  a  vast  historical  evolution  is  ap- 
parent. But  to  reduce  the  stages  of  this  progression  to 
a  necessary  coordinated  sequence  appears  an  impossi- 
ble task.  The  same  goal  has  been  reached  by  different 
paths ;  not  all  political  communities  have  passed  through 
the  same  phases  of  development.  What  has  been  the 
result  of  an  internal  evolution  in  some  has  been  ef- 
fected in  others  by  imitation  and  adaptation  of  wh.it 

*  "  Of  all  these  endless  controversies  in  reference  to  relationship  and 
marriage,  what  seems  to  me  most  evident  is  that  the  primitive  family 
has  assumed  various  forms,  here  monog^amic,  there  polygamic,  elsewhere 
polyandric,  sometimes  ezogamio,  sometimes  endogamic,  often  more 
authoritative,  sometimes  less  so  than  it  has  become  later."  Q.  Tarde, 
Le$  Tranxformationi  du  Droit,  chap.  iii. 


THE  TRUE  ORIGIN  OF  THE  STATE  47 

already  existed  elsewhere.  Democratic  government  has 
been  attained  in  various  modern  states  by  quite  distinct 
historical  stages. 

Notwithstanding  these  considerations,  the  attempt  to 
reduce  political  progress  to  the  formula  of  a  prescribed 
course  of  development  has  often  been  made.   At  the 
very  outset  of  political  speculation  we  have  the  famous 
"cycle  theory"  of  Plato,  and  a  theory  of  progressive 
change  laid  down  by  Aristotle.   Plato  thought  that  the 
natural  life  of  a  state  must  move  through  a  definite 
course  of  political  changes.  Aristocracy,  the  rule  of  the 
best,  passed  into  timocracy,—  the  government  of  honor 
or  rule  of  the  military  class.  This  changed  to  oligarchy, 
then  to  mob  rule,  and  finally  to  tyranny.'  The  views 
of  Aristotle  will  be  considered  in  some  detail  in  a  later 
chapter.'^  While  criticising  Plato's  opinions  and  point- 
ing out  that  successive  political  revolutions  do  rot 
always  follow  the  same  order  of  development,  Aristotle 
nevertheless  considers  the  transition  from  monarchy  to 
oligarchy,  from  oligarchy  to  tyranny,  and  from  tyranny 
to  democracy  to  have  been  the  normal  or  usual  nature 
of  Hellenic  political  change.'  However  applicable  this 
may  have  been  to  the  history  of  the  Greek  city  states 
of  the   seventh   and  following   centuries    before   thr 
Christian  era,  it  cannot  be  accepted  as  any  general  or 
universal  key  to  the  political  evolution  of  later  ages.* 

4.   Military  and  Economic  Factors.    Equally 
attractive  and  no  less  futile  is  the  attempt  to  ascribe 

»  Plato,  BepMic,  bk.  yiii,  §  545.    See  also  Bmaung,  W.A.,  History 
qfPoiitical  Thionea  ( 1902),  chap.  U. 

*  See  part  i,  chap.  vii. 

*  Aristotle,  Politics,  iii,  chap.  15. 

*  See  in  this  connection  Warde  Fowler,  Tlie  City-State.     1893. 


48  THE  NATURE  OF  THE  STATE 

the  evolution  of  the  modern  state  to  the  operation  of  a 
single,  or  at  any  rate  ^  dominant,  motive  power.  Of 
this  an  illustration  is  seen  in  the  "  History  of  Tolitics," 
already  mentioned.   "  The  origin  of  the  state,  or  polit- 
ical society,"  says  Mr.  Jenks,  "  is  to  be  found  in  the 
development  of  the  art  of  war.  .  .  .  There  is  not  the 
slightest  difliculty  in  proving  that  all  political  communi- 
ties of  the  modern  type  owe  their  existence  to  success- 
ful warfare." '   It  is  of  course  quite  true  that  all  modern 
political  communities  have  had  to  fight  for  their  exist- 
ence.  It  is  also  true  that  certain  aspects  of  their  organi- 
zation —  standing   armies,  conscription,  etc.  —  bear 
witness  to  the  importance  of  the  function  of  external 
defense.  But  it  is  not  to  be  supposed  on  this  account 
that  the  type  assumed  by  modem  political  communities 
is  to  be  ascribed  entirely  to  the  exigencies  of  their 
military  life.  Contrast  with  this  the  standpoint  of  the 
Marxian  socialists  of  Germany,  who  tell  us  that  the  de- 
velopment of  government,  along  with  that  of  all  social 
institutions,  is  to  be  attributed  solely  to  economic  fac- 
tors. The  state  represents  merely  the  organization  by 
which  the  property^wning  class  enjoys  the  fruits  of  the 
laborer's  toil.'*  In  each  of  these  cases  a  single  factor  in 
the  history  of  the  modern  state  is  unduly  magnified  to 
appear  as  the  paramount  force  in  its  development. 

5.  Some  Oeneral  Features  of  Political  Evolu- 
tion. To  trace  the  rise  and  growth  of  any  particular 
state,  and  the  different  phases  of  the  evolution  of  its 
institutions,  is  the  task  of  history,  not  of  Political  Sci- 
ence. Speaking  of  the  state  in  general  it  is  impossible 

1  Hisi  ry  of  Politics,  chap.  xiii. 

s  Manifesto  of  the  Commnnist  Party,  1848. 


f     " 


THE  TRUE  ORIGIN  OP  THE  STATE  49 

to  predicate  any  nnivenal  course  of  development  or 
any  necessary  series  of  forms  which  it  must  assume. 
Looking,  however,  at  the  present  stage  that  has  been 
reached  in  the  growth  of  political  institutions,  we  may 
nevertheless  indicate  some  of  those  general  character- 
istics  which  the  modem  state  has  acquired  and  which 
differentiate  it  so  entirely  from  rudimentary  or  primi- 
tive governments.   In  the  first  place  there  has  been, 
speaking  broadly,  a  progressive  increase  in  the  extent 
of  territory  occupied  by  a  single  state.  At  the  dawn  of 
history,  mankind  is  found  grouped  in  vast  numbers  of 
small  political  communities.   On  the  map  of  the  world 
to-day  we  find  the  greater  part  of  the  inhabited  ter- 
ritory controlled  by  a  relatively  small  group  of  vast 
states.  Of  the  62,300,000  square  miles  which  make  up 
the  land  "surface  of  the  globe  the  British  Empire  covers 
11,616,000,  the  Russian  Empire  8,660,000,  the  Chinese 
Empire  4,277,000,  and  the  United  States  8,667,000. 
True,  this  widening  area  of  the  territorial  poetical 
unit  has  not  been  literally  continuous.  The  Roman  Em- 
pire was  vastly  greater  than  such  small  modem  states 
as  Greece  or  Roumania.   But  the  tendency,  though  at 
times  intermpted  or  over-accelerated,  is  nevertheless  a 
leading  factor  in  the  history  of  the  world.    In  the  sec- 
ond place  we  may  note  the  constantly  increasing  fixity 
and  certainty  of  the  action  of  the  state.   The  rule  of  a 
primitive  government,  especially  if  spread  over  a  rela- 
tively large  area,  is  uncertain  and  irregular.   Offenses 
against  its  authority  may  or  may  not  meet  with  retri- 
bution, and  when  it  punishes  it  acts  with  a  vengeful 
severity  arising  from  its  weakness.  In  many  cases  its 
sway  is  little  more  than  nominal.  But  the  progressive 


60 


THE  NATURE  OF  THE  STATE 


development  of  political  institution':  has  given  to  the 
state  an  organization  which  insures  to  it  a  definite  and 
regular  action.  A  thii-d  essential  feature  in  the  de- 
velopment of  the  state  is  the  growth  of  political  con- 
sciousness. The  earlier  stages  of  social  union  are  largely 
intuitive  and  unconscious ;  nor  does  there  ever  come  a 
single  point  of  time  at  which  collective  action  suddenly 
becomes  deliberate.  We  have  seen  that  the  assumption 
of  such  a  step  in  political  development  was  one  of  the 
errors  of  the  social-contract  theory.  But  in  comppring 
rudimentary  government  with  modern  civilized  govern- 
ment we  can  observe  the  essential  difference  that  ex- 
ists in  this  respect. 

Of  the  other  broad  features  of  the  development  of 
social  structure,  the  separation  that  has  been  effected 
between  the  religious  and  the  political  aspects  of  society 
may  be  especially  noted.  The  early  forms  of  govern- 
ment were  theocratic.  The  functions  of  priest  and  king 
were  intermingled  or  closely  allied.  The  divine  law  was 
presumed  to  constitute  the  sanction  behind  human  enact- 
ments. Such  is  the  system  on  which  rested  the  theocracy 
of  the  Jews.  In  the  modem  state,  however  generally 
it  may  be  admitted  among  the  citizens  that  legislation 
ought  to  be  based  on  the  ethical  principles  of  Chris- 
canity,  the  interpreters  of  the  divine  law,  in  the  form 
of  the  priesthood,  are  not  placed  in  a  position  of  civil 
authority.  The  guidance  of  the  spiritual  and  the  po- 
litical life  of  the  community  is  in  different  hands.  The 
nature  of  the  earlier  form  of  the  state  is  seen  in  the 
survival  of  established  or  partially  established  churches 
in  Great  Britain  and  some  other  European  countries. 
The  formerly  prevalent  practice  of  invoking  the  author- 


THE  TRUE  ORIGIN  OF  THE  8TATF  61 

ity  of  the  state  to  lappreu  heresy  and  unbelief  rested 
on  the  same  conception  of  organization.  Tlie  progi-es- 
sive  separation  of  church  and  state  has  been  one  of  the 
evident  results  of  political  evolution. 

The  growth  of  democratic  government,  the  partici- 
pation  of  the  great  mass  of  the  people  in  political  con- 
trol, is  the  most  imjwrtaut  feature  in  the  development 
of  the  state.  Democratic  government  does  not,  of  course, 
exist  in  all  the  great  civilized  states,  but  in  the  chief 
of  them  —  either  in  the  shape  of  a  republic  or  under 

the  more  or  less  nominal  semblance  of  monarchy 

it  has  become  an  accepted  fact.  The  progress  of  de- 
mocracy has  not,  of  course,  been  continuous  and  un- 
broken. We  have  but  to  compare  the  republic  of 
Athens  with  the  principalities  of  the  dark  ages,  or  with 
France  of  the  eighteenth  century,  to  see  that  the  de- 
velopment of  self-government  has  not  moved  in  a  con- 
tinuous advance.  But  it  is  hardly  to  be  denied  that 
the  principle  of  democratic  rule  has  now  become  a 
l)ermaneat  and  essential  factor  in  political  institutions 
and  that  it  alone  can  form  the  basis  of  the  state  of  the 
future. 

READINGS  SUGGESTED 
Aristotle's  Politics  (Jowett's  translation,  1886),  bk.  i. 
Jenki,  E.,  History  of  Politics  (1900),  chap,  i-vii. 

FURTHER  AUTHORITIES 
Freeman,  E.  A.,  Comparative  Politics  (1873). 
McLennan,  J.  F.,  The  Patriarchal  Theory  (188-5). 
Morgan,  L.  H.,  Ancient  Society  (1877). 
Westermarck,  E.,  History  of  Human  Marriage  (1891). 
Tarde,  G.,  Les  Transformations  du  Droit  (13th  edition),  (1900) 
Fowler,  W.,  The  City-State  (1893). 


CHAPTER  IV 


>>»' 


i 

I 


THE  SOVEREIGNTY  OF  THE  STATE 

1.  An«lyiM  of  the  Conception  of  SorereiKBty ;  Meaninfr  of  Law  and 
Riirbt.  —  2.  The  Location  of  SovereiKnty  in  Exiating  GovernmenU. 
— :!.  CriticUm  of  the  Doctrine  of  SoTeteignty  ;  Sir  Henry  Maine'i 
Objeetionii  —  4.  Theory  of  Political  Sorereignty.  —  fi.  Critieiam.  — 
6.   Ottkl  ur  Divided  Soveieignty. 

L  AnalTsifl  of  the  Conception  of  Sovereignty; 
MMUilng  of  Law  and  Right.  Having  considered  in 
the  preceding  chapters  the  general  idea  of  the  state  as 
an  organized  communitv  occupying  a  definite  territory, 
it  is  next  necessary  to  make  a  further  analysis  of  the 
organization  itself.  This  will  involve  the  discussion  of 
the  relations  existing  between  the  individual  citizen 
and  the  state  as  a  whole.  The  two  central  points 
around  which  the  discussion  of  the  present  and  the  sue* 
ceeding  chapter  will  turn,  are  those  of  the  sovereignty 
of  the  state,  and  the  liberty  of  the  individual.  These 
two  ideas,  which  appear  at  first  sight  to  be  mutually 
contradictory,  will  be  shown  to  be  not  only  reconcila- 
ble, but  complementary  and  correlative  to  one  another. 

The  question  of  the  sovereignty  of  the  state  has 
long  been  a  vexed  topic  of  political  discussion,  and  one 
that  has  given  rise  to  the  most  serious  difficulties  and 
misunderstandings.  The  proposition  that  the  state  is 
absolutely  sovereign  over  the  individual  has  proved 
itself  a  stumbling-block  and  a  rock  of  offense  to  the 
student  of  political  theory.   Take,  for  example,  the 


I 


THE  SOVEREIGNTY  OP  THE  STATE  83 

•nmci^tion  of  the  principle  of  sovereignty  given  by 
Profesior  Bargeu.   "  I  undemtand  by  it,"  he  says*, "  th« 
original,  absolute,  unlimited,  universal  power  over  the 
individual  subject  and   all  associations  of  subjects." 
This  is  a  hard  saying  and  one  calculated  to  call  forth 
at  first  sight  a  most  emphatic  contradiction.   It  seems 
to  sanction  the  tyranny  of  the  state,  and  to  involve 
the  sacrifice  of  individual  rights.    A  nearer  analysis 
of  the  proper  meaning  to  be  attachetl   t«  the  sove- 
reignty  of  the  state  ought  to  rob  it  of  all  offensive 
connotation.   What  is  meant  is  simply  this.   The  state 
IS  an  organized  community.   It  comes  into  existence 
when  the  relations  of  control  over  and  obedience  from 
the  individual  person  are  established.   This  obedience 
may  or  may  not  receive  the  approval  of  the  individual 
rendering  it.  The/art  of  obedience  is  all  that  is  needed 
in  order  that  the  state  may  be  said  to  «  ist.   Some- 
where within  the  state  there  will  exist  a  certain  per- 
son  or  body  of  persons  whose  commands  receive  obe- 
dience.  The  commands  may  be  just  or  unjust,  morally 
speaking,  and  the  persons  in  po^er  may  be  put  in  a 
position  to  issue  them,  either  by  gen.ml  consent  or  by 
the  use  of  physical  force.   But  in  eith.^r  ^ace  they  are 
able  to  make  their  commands  good  by  actual  coercion. 
Unless  there  is  such  a  body  there  is  no  state.   The 
commands  thus  given  are  caUed  laws.  A  law,  then,  is  a 
command  issued  by  the  state.   Can  there,  then,  be  any 
hmit,  any  legal  limit,  to  the  sovereignty,  or  legal  su- 
premacy,  of  the  state  ?  Obviously  not,  for  such  a  limit 
would  imply  a  contradiction  in  terms.    A  legal  limit 

JVow  the  lawgiving  authority  is  the  sovereign  power 


i 


i 


I 


ri'.'ys* 


64 


THE  NATURE  OF  THE  STATE 


of  the  state,  and  any  limits  it  might  put  on  its  own 
power  would  be  removed  as  soon  as  it  saw  fit  to  remove 
them.  The  lawgiving  power  of  the  lawgiving  body  is 
therefore  of  necessity  unlimited.  The  state,  in  other 
words,  is  legally  sovereign.  Looked  at  in  this  light  the 
matter  simply  resolves  itself  into  an  equation  in  terms. 
An  examination  of  the  fundamental  definition  of  law 
and  sovereignty  laid  down  by  the  English  jurist  John 
Austin  *  may  make  still  clearer  this  point  of  view. 
"  If  a  determinate  human  superior  not  in  the  habit  of 
obedience  to  a  like  superior  receive  habitual  obedience 
from  the  bulk  of  a  given  society,  that  determinate 
superior  is  sovereign  in  that  society,  and  that  society 
(including  the  superior)  is  a  society  political  and  inde- 
pendent." According  to  this,  then,  a  state  (or  "  society 
political  and  independent,"  as  Austin  calls  it)  is  a  com- 
munity in  which  such  obedience  is  given  and  received. 
The  fact  of  rule  and  obedience  is  the  test  of  the  ex- 
istence of  a  state.  A  law  is  a  command  calling  for 
such  obedience.  We  must  carefully  note,  too,  the  con- 
ception of  a  right,  a  legal  right,  which  will  follow  from 
these  premises.  It  will  mean  any  privilege  or  immu- 
nity enjoyed  by  a  citizen  as  against  any  of  his  fellow 
citizens,  granted  by  the  sovereign  power  of  the  state 
and  upheld  by  that  power.  This,  it  will  be  seen,  is  al- 
together different  from  a  right  in  the  ethical  or  moral 
sense.  Before  the  French  Revolution,  for  example, 
under  the  state  existing  in  the  eighteenth  century,  the 
feudal  lord  had  a  "  right "  to  collect  most  oppressive 

>  John  Anitin  (1700-1859),  the  chief  English  writer  on  juriiprudence 
of  the  nineteenth  century,  ia  to  be  regarded  as  the  founder  of  the 
analytical  school,  vhose  riewa  have  exercised  a  panuoount  influence 
on  legal  thought  in  England  and  America. 


■*i 


THE  SOVERBIGNTY  OF  THE  STATE  65 

dues  from  his  inferior.  Similarly  a  despot  might  grant 
to  one  of  his  underlings  the  "right "  of  life  and  death 
over  the  people  of  a  subjugated  province.  It  will 
follow  that  in  the  organization  of  the  state  the  individ- 
ual can  have  no  "rights  "  against  the  state  itself.  For 
this,  since  it  is  the  state  which  creates  a  legal  right, 
would  involve  a  contradiction  in  terms.  It  is  to  be 
observed  that  as  thus  understood,  the  conception  of 
sovereignty,  law,  and  right  is  altogether  divorced  from 
morality  and  ethics. 

The  misunderstanding  of  this  restricted  sense  in 
which  the  state  is  sovereign  and  law  is  unlimited  in  its 
power  leads  to  an  altogether  fallacious  form  of  objec 
tion.  Surely,  it  is  urged,  the  state  has  no  right  to  inter- 
fere  with  such  things  as  the  religion  and  private  life 
of  the  individual?  Surely  there  are  limits  to  the  pro- 
vince  in  which  the  commands  of  the  state  may  intrude  ? 
There  are  assuredly  such  limits  in  the  moral  sense; 
certainly  most  persons  would  think  it  morally  wrong 
for  the  state  to  dictate  as  to  the  religious  creed  of  the 
individual.   But  this  does  not  imply  any  legal  limit  to 
the  jurisdiction  of  the  state.   The  sovereign  body  of  the 
state  can  be  under  no  legal  restriction  as  to  its  inter- 
ference  in  religion  or  any  private  matter.   If  it  were 
under  such  a  limitation  then  it  would  not  be  a  sovereign 
body ;  the  sovereignty  would  lie  in  that  person  or  per- 
sons  in  whose  power  it  lay  to  assign  and  mark  off  these 
limits.   The  same  answer  is  to  be  made  to  the  various 
other  attempts  to  put  a  "  limit "  on  the  extent  of  sover- 
eign  power.  Bluntschli,  for  instance,  tells  us  that  "  the 
state  as  a  whole  is  not  almighty,  for  it  is  limited  ex- 
temaUy  by  the  rights  of  other  states,  and  intemaUy  by 


ffT^fl?" 


M 


THE  NATURE  OF  THE  STATE 


I 


its  own  nature  and  by  the  rights  of  its  individual  mem* 
bers."  ^  Bentham  claimed  that  the  sovereignty  of  the 
state  was  limited  by  its  treaties  with  other  states.  But 
each  of  these  "limits"  is  of  an  ethical,  not  a  legal 
character.  Legally  speaking  the  state  is  almighty. 

The  misunderstanding  so  easily  engendered  here  is 
heightened  by  the  ambiguity  of  some  of  the  termino- 
logy employed  in  this  connection.  The  word  right 
has  both  its  moral  and  its  legal  sense.  In  the  former 
application  it  extends  over  the  whole  field  of  conduct, 
and  refers  to  all  those  actions  and  forbearances  which 
it  is  our  moral  duty  to  perform ;  in  the  legal  sense  it 
refers  only  to  those  actions  or  forbearances  the  per- 
formance of  which  is  rendered  compulsory  by  the 
coercive  power  of  the  state.  Similarly  the  word  sove- 
reignty is  not  only  used  in  the  sense  of  legal  suprem- 
acy, but  has  also  another  connotation.  It  is  used, 
that  is  to  say,  in  a  purely  nominal  sense,  to  indicate 
the  titular  supremacy  of  a  monarch.  King  Edward 
VII  is  the  sovereign  of  the  United  Kingdom  of  Great 
Britain  and  Ireland,  but  this  is  only  titular  and  not 
legal  sovereignty.  The  distinction  is  sufficiently  obvi- 
ous to  need  no  further  explanation. 

2.  The  Location  of  Sovereignty  in  Existing 
Govenunents.  The  nature  of  sovereignty  and  law 
as  thus  described  may  be  further  illustrated  by  exam- 
ining its  actual  application  to  the  case  of  some  of  the 
chief  states  of  the  world.  'The  example  most  easily 
understood  is  that  of  the  British  Empire.  Here  the 
sovereign  legal  authority  lies  in  the  Parliament, — 
the  word  Parliament  having  of  course  its  technical 
1  Vieory  of  the  State,  bk.  tU,  olutp.  L 


THE  SOVEREIGNTY  OF  THE  STATE  67 

legal  meaning  of  king,  lords,  and  commons.  Parlia- 
ment  is  an  absolute  legal  sovereign.   Every  law  that  it 
sees  fit  to  make  is,  ipso  facto,  a  valid  law.  There  is  no 
(legal)  restriction  on  the  extent  of  its  jurisdiction. 
No  British  court  can  question  the  validity  of  a  statute 
duly  passed  by  Parliament.   It  is  (legaUy)  quite  unre- 
strained  by  custom,  by  the  legislation  of  the  past,  or  by 
any  of  the  written  documents  (Magna  Carta,  etc.)  which 
may  be  said  to  form  part  of  the  British  Constitution. 
No  individual  citizen  has  any  (legal)  "rights"  which 
the  sovereign  power  of  Parliament  could  not  annul ;  no 
local  body  or  colony  has  any  powers  of  self-government 
which  an  act  of  Parliament  could  not  abolish. 

The  example  of  the  British  Empire  seemi  to  show 
the  legal  supremacy  of  the  state  in  simple  form.    The 
case  of  the  United  States,  though  more  complex,  is 
reducible  to  the  same  elements.   Here,  at  first  sight 
the  presence  of  the  sovereign  body  is  not  so  apparent.' 
The  powers  of  the  government  of  any  state  of  the 
Union -either  executive  or  legislative  -  are  powers 
of  limited  legal  extent.   Similarly  the  powers  of  the 
federal  government -of  the  President  and  of  Con- 
gress, or  of  both  together -are  powers  of  limited  ex- 
tent.  The  Congress  is  not  legally  empowered,  as  is 
the  British  Parliament,  to  make  any  law  it  may  think 
proper,  and  the  courts  can  question  the  validity  -i  any 
statute,  either  state  or  federal,  which  transcends  the 
legal  powers  of  those  who  made  it.    For  example,  a  fed- 
eral  law  imposing  an  export  duty  would  not  be  legally 
bmdjng.   But  all  this  is  only  to  say  that  neither  the 
President  nor  the  Congress  nor  the  state  government 
18  the  body  invested  with  the  sovereign  power  of  the 


88 


THE  NATURE  OF  THE  STATE 


f 


i 


state.  The  supreme  authority  lies  elsewhere.  It  is  in 
that  body  which  has  power  (legally)  to  make  any  law 
it  wishes,  that  is  to  say  in  the  body  which  has  the  legal 
right  to  amend  the  Constitution  of  the  United  States. 
It  is  true  that  this  body,  consisting  of  a  two-thirds 
majority  of  Congress,  or  a  special  convention,  with  the 
ratification  of  three  fourths  of  the  state  legislatures  or 
of  special  conventions,*  is  not  in  permanent  session 
as  a  united  governing  body.  But  it  is  clear  tha*^  theo- 
retically at  any  rate  it  exists,  and  may  be  looked  upon 
as  having  a  legal  supremacy  as  complete  as  that  of 
the  British  Parliament.  In  like  manner  in  the  case 
of  France,  neither  the  President  nor  the  Chamber  of 
Deputies  nor  the  Senate  has  unlimited  legal  competence. 
The  powers  of  all  of  them  are  restricted  by  the  "  consti- 
tutional laws  "  of  the  French  Republic.  But  the  Senate 
and  the  Deputies  may  be  fused  together  into  a  joint 
session  or  national  assembly,  in  which  capacity  they 
may  amend  the  constitution  and  are  legally  supreme. 

3.  Criticism  of  the  Doctrine  of  Sovereignty; 
Sir  Henry  i^aine's  Objections.  Such  is  in  the  main 
the  conception  of  sovereignty  and  law  which  is  par- 
ticularly associated  with  the  modern  English  school  of 
jurists,  the  analytical  school,  as  it  is  often  called.  It 
may  be  considered  on  the  whole  the  most  satisfactory 

'  "  The  Cong^as,  whenever  two  thirds  of  both  Houses  shall  deem  it 
necessary,  shall  propose  amendments  to  this  Constitation,  or  on  the  ap- 
plication of  the  Legislatures  of  two  thirds  of  the  several  States,  shall 
call  a  conrention  for  proposinfr  amendments  which  in  either  case  shall 
be  valid  to  all  intents  and  purposes,  as  part  of  this  Constitution,  jirhen 
ratified  by  the  Legislatures  of  three  fourths  of  the  several  States, 
or  by  conventions  in  three  fourths  thereof,  as  the  one  or  the  other 
mode  of  ratification  may  be  proposed  by  Congress."  Constitution  ofth* 
UniUd  Statet,  Art  V. 


THE  SOVEREIGNTY  OF  THE  STATE  S9 

basis  for  an  analysis  of  the  political  state.  It  has,  how- 
ever,  met  with  severe  and  searching  criticism,  and  has 
by  no  means  received  a  universal  acceptance.  It  is  only 
reasonable,  therefore,  to  present  in  connection  with  it 
some  of  the  chief  points  of  attack.  The  objections  raised 
against  it  are  directed  to  show  that  it  is  only  of  a  for- 
mal  and  abstract  nature,  that  it  is  inadequate  in  that 
It  does  not  reaUy  indicate  the  ultimate  source  of  polit- 
ical  authority,  and  that  it  presents  an  erroneous  concep- 
tion  of  the  nature  of  law. 

The  first  of  these  objections  to  the  Austinian  theory  is 
especially  urged  in  the  criticism  offered  by  the  English 
jurist  Sir  Henry  Maine  in  his  Oxford  lectures  on  the 
"  Early  History  of  Institutions." '  From  his  seven  years' 
experience  as  legal  member  of  the  council  for  India, 
Mame  was  brought  in  contact  with  a  civilization  of  an 
essentially  different  character  from  the  environment 
of  English  legal  institutions  which  had  been  the  basis 
of  Austin's  work.    In  Eastern  countries  immemorial 
custom  reigns  supreme.   The  idea  of  deliberate  statu- 
tory enactment  is  alien  to  the  oriental  mind,  and  the 
most  ruthless  of  Eastern  despots  finds  his  power  con- 
trolled by  the  barriers  of  ancient  usage  and  religious 
awe.    Maine  was,  therefore,  led   to  question  whether 
there   is  "  m  every  independent  political  community 
some  single  person  or  combination  of  persons  which 
has  the  power  of  comp     ing  the  other  members  of  the 
community  to  do  exacth  as  it  pleases."   The  presump- 
tion that  every  community,  except  during  temporary 
intervals   of  disturbance,  contains  this  individual  or 
collegiate  sovereign  "as  certainly  as  the  centre  of 

»  See  Early  Historg  of  Institutions,  lectures  xii  and  xiiL 


H 


fCfS^ 


eo 


THE  NATURE  OF  THE  STATE 


i,   •    I 


gravity  in  a  mass  of  matter,"  seemed  to  him  unwar* 
ranted  by  historical  or  actual  fact.  Particularly  is  this 
the  case  with  communities  of  the  oriental  type.  Maine 
instances  the  example  of  Runjeet  Singh,  the  despot 
of  the  Punjaub,  '*  the  smallest  disobedience  to  whose 
conmiands  would  have  been  followed  by  death  or  mu- 
tilation." In  spite  of  this  ruler's  extensive  power  he 
never  "  issued  a  command  which  Austin  would  call  a 
law.  .  .  .  The  rules  which  regulated  the  lives  of  his 
subjects  were  derived  from  their  immemorial  usages, 
and  these  rules  were  administered  by  domestic  tribu- 
nals." The  inevitable  conclusion  seems  to  be  that  the 
conceptions  of  sovereignty,  state,  and  law  adopted  in 
the  Austinian  jurisprudence  are  inapplicable  to  com- 
munities of  this  description.  But  it  is  not  only  in 
regard  to  oriental  society  that  Maine  finds  Austin's 
analysis  inadequate.  Even  in  the  world  of  western 
civilization  it  is  only  true  as  the  result  of  a  process  of 
abstraction  which  "  throws  aside  all  the  characteristics 
and  attributes  of  government  and  society  except  one," 
namely,  the  possession  of  force ;  this  explanation  of 
political  power  by  reference  solely  to  a  single  attribute 
disregards  at  the  same  time  "  the  entire  history  of  the 
community,  .  .  .  the  mass  of  its  historic  antecedents, 
which  in  each  community  determines  how  the  sove- 
reign shall  exercise,  or  forbear  from  exercising,  his  ir- 
resistible coercive  pKJwer." 

The  nature  of  this  objection  had,  indeed,  been  in  some 
measure  anticipated  by  Austin  himself.  In  order  to 
cover  all  those  cases  of  usage  in  which  not  the  direct 
command  of  the  sovereign  but  dictates  of  customary 
procedure  obtained  sway,  he  laid  down  the  maxim, 


THE  SOVEREIGNTY  OF  THE  STATE  61 

"What  the  ■overeign  permits  he  commands."   The  ap- 
phcation  of  this  doctrine  may  be  best  seen  in  the  case  of 
the  English  common  (or  customary)  law.  This  is  a  body 
of  regulations  never  expressed  in  the  form  of  statutes 
issued  by  the  sovereign  Parliament,  but  existing  from 
ancient  times,  and  constantly  modified  and  expanded 
by  the  interpretation  of  the  courts.   It  would  be  quite 
wrong,  Austin  argues,  to  hold  that  the  existence  and 
continuance  of  this  body  of  law  is  any  indication  of  a 
limitation  of  the  sovereign  power  of  Parliament  For 
since  the  latter  is  admittedly  competent  to  alter  or  abro- 
gate  the  common  law  as  it  sees  fit,  the  continued  exist- 
ence  thereof  is  to  be  viewed  as  virtuaUy  by  command 
of  Parliament.   This  argument  is  undoubtedly  true  in 
reference  to  the  legal  validity  of  the  common  h»w.  The 
attempt,  however,  to  apply  it  to  such  cases  as  that  of 
the  Punjaub  despot  seems  entirely  erroneous.   For  in" 
this  mstance  the  sovereign  has  no  alternative  but  to 
"permit"  what  he  cannot  alter.    Only  an  exaggera. 
tion  of  terms  could  convert  this  into  sovereignty.   On 
the  same  ground  any  one  might  "permit"  the  kw  of 
gravitation  to  continue  in  force. 

It  may  perhaps  reasonably  be  held  that  Austin's 
analysis  is  applicable  to  modern  civilized  states,  but 
inapplicable  to  halfKjrganized  or  primitive  communities. 
Even  in  the  case  of  civilized  states,  it  is  true  that  the 
theory  IS  in  a  certain  sense  an  abstraction.  "  It  is  true," 
says  Sir  James  Stephen,  in  speaking  of  the  theorv  'f 
sovereignty,' "like  the  propositions  of  mathemati     or 

J  HanE  Sabbatic^,  ««ond  wrie.,  chap.  i.  The  author  i.  „H,akin»  „; 
the  theory  a,  l«d  down  b,  Hobbea,  but  the  remark,  apply  ^«dly1ri 
to  the  more  modem  form  of  the  doctrine.  FV  /  eqwmy  weu 


piiP 


s  ■, 


I  \ 


02 


THE  NATURE  OF  THE  STATE 


political  economy,  in  the  abstract  only.  That  is  to  say, 
the  propositions  which  it  states  are  propositions  which 
are  suggested  to  the  imagination  by  facts,  though  no 
facts  completely  embody  and  exemplify  them.  As  there 
is  in  nature  no  such  thing  as  a  perfect  circle,  or  a  com- 
pletely rigid  body,  or  a  mechanical  system  in  which 
there  is  no  friction,  or  a  state  of  society  in  which  men 
act  simply  with  a  view  to  gain,  so  there  is  in  nature  no 
such  thing  as  an  absolute  sovereign."  With  these  lim- 
itations the  Austinian  theory  may  be  looked  upon  as 
substantially  correct.  Its  application  is  to  be  viewed 
as  limited  to  communities  definitely  organized.  The 
analysis  of  political  power  which  it  offers  is  not  meant 
as  an  explanation  of  the  ultimate  source,  the  first  cause, 
of  authority,'  but  merely  intended  as  a  universal  alx 
stract  formula,  indicating  the  method  of  its  operation  in 
the  modem  world.  To  accept  the  doctrine  in  this  sense, 
is  .of  course  necessarily  to  restrict  the  connotation  of 
the  terms  state  and  law.  The  term  state  will  include 
only  communities  possessing  the  requisite  finality  of  or- 
ganization, and  fixed  relations  of  command  and  obedi- 
ence. A  law  will  connote  only  a  command  issued,  either 
directly  or  indirectly  (through  deliberate  refusal  to  con* 
travene  an  established  usage)  by  the  sovereign  organi> 

*  "  The  qnestiou  who  if  the  legal  Dovereia^n,"  says  Bryee,  "  stands 
quite  apart  from  th<s  questions  why  is  lie  sovereign,  and  who  made  him 
■overeign.  The  historical  facts  which  havo  vested  power  in  any  give 
•overeign,  as  well  as  the  moral  grunuds  oo  which  he  is  entitled  to 
obedience,  lie  outaide  the  questions  with  which  law  is  concerned,  and 
belong  to  history,  to  political  philosophy,  or  to  ethics ;  and  nothing  but 
confnaion  is  caused  by  obtruding  them  into  the  purely  legal  qaestiona 
of  \i  ■  determination  of  the  sovereign  and  the  definitira  of  hia  powers." 
St.'s    1  in  History  and  Juriiprudenct. 


THE  SOVEREIGNTY  OF  THE  STATE  63 

lation  of  the  state.   What  is  thus  lost  in  width  of  con- 
notation  will  be  gained  in  precision  and  significance. 

Many  authors  prefer,  however,  to  widen  the  terms 
state  and  law,  in  order  to  meet  Maine's  criticism,  and 
to  include  the  oriental  or  other  communities  whose 
political  cohesion  does  not  correspond  to  the  Austinian 
analysis.    Woodrow  Wilson,*  for  instance,  presents  a 
conception  of  law  which  does  not  identify  it  with  a 
definite  command,  but  endeavors  to  include  in  it  those 
customary  usages  which  have  become  of  binding  force. 
"Uw,"  he  says,  "is  that  portion  of  the  established 
thought  and  habit  which  has  gained  distinct  and  formal 
recognition  in  the  shape  of  uniform  rules  backed  by 
the  authority  and  power  of  government."   Of  these 
rules  deliberate  enactment  is  only  one  of  the  contrib- 
utory  sources.  They  arise  in  part  from  long  standing 
custom  "shaped  by  the  cooperative  action  of  the  whole 
community,  and  not  by  any  kingly  or  legislative  com- 
mand." Among  the  other  sources  of  law  are  the  rules 
of  conduct  dictated  by  religious  belief,  and  the  decisions 
of  those  who  adjudicate  upon  the  law  already  existing 
and  thus  expand  its  meaning.   The  view  here  adopted 
by  Professor  Wilson  is  intended  to  harmonize  the  anar 
lytical  account  of  law  with  the  criticism  offered  by 
Sir  Henry  Maine.   But  it  is  perhaps  open  to  question, 
whether  m  the  case  of  civilized  states  the  maxim  "  what 
the  sovereign  permits  he  commands  "  will  not  bring  the 
sources  of  law  above  mentioned  within  the  sphere  of 
the  Austinian  formula. 

4.  Theory  of  Political  Sovereignty.    In  addition 
to  the  criticism  of  the  Austinian  theory  of  sovereignty 
1  ne  State,  oh»p.  ziv. 


I- 1 


64 


THE  NATURE  OF  THE  STATE 


r  1 


f    t     I: 


\  \  i 


thus  indicated,  exception  haa  been  taken  to  it  upon 
a  lomewhat  different  ground.  The  conception  of  legal 
authority,  it  is  arg  -mI,  though  undeniable  as  far  as 
it  goes,  does  not  go  far  enough ;  while  indicating  the 
person  or  body  of  persons  legally  competent  to  issue 
sovereign  commands  to  the  rest  of  the  community, 
it  does  not  really  trace  out  the  ultimate  repository 
of  political  power.  In  a  despotic  monarchy,  the  will  of 
the  monarch  may  be  the  sole  lawful  authority,  but  the 
monarch  himself  may  be  merely  the  pliant  tool  of  a 
cunning  priest  or  dominating  vizier.  In  countries  with 
representative  government,  the  elected  governing  body 
may  have  or  seem  to  have  a  temporary  leg^  control, 
but  what  are  we  to  say  of  the  general  body  of  electors, 
whose  will  they  represent,  and  from  whom  they  derive 
their  authority?  Is  it  an  adequate  explanation  of  politi- 
cal cohesion  and  obedience  to  stop  short  of  the  legal 
supremacy  of  a  king  or  legislature,  whose  power  noay 
be  nominal,  illusory,  or  delegated,  and  to  refuse  to 
recognize  the  real  and  paramount  source  of  authority 
which  lies  behind  it  ? 

On  these  grounds  several  writers  have  recently  sought 
to  amend  the  Austinian  theory  by  appending  to  the  con- 
ception of  pure  legal  sovereignty  that  of  real,  or  "poli- 
tical sovereignty." '  Their  intention  is  not  to  set  aside 
the  result  of  Austin's  analysis,  but  merely  to  draw  at- 
tention to  the  fact  that  it  does  not  seem  to  offer  a  com- 

^  For  the  theory  of  political  MTereignty  the  rtndent  may  eonstilt  A. 
V-  Dioey,  Law  of  the  Constitution;  David  G.  Ritchie,  Principles  of  State 
Interference ;  Sidg^ck,  Elements  of  Politics,  chap,  xzxi,  and  M'Kechnie, 
State  and  Individual,  chap,  ix,  x.  All  of  these  authorities  consider 
the  distinction  between  legal  and  political  sovereignty  both  tenable 
■ad  valiuble. 


THE  SOVEREIGNTY  OF  THE  STATE     6S 

plete  ezplmnation  of  the  nature  and  location  of  aupreme 
political  power.  "  Behind  the  sovereign  which  the  law- 
yer  recognizes,  there  is," says  Professor  Dioey,  "another 
sorereign  to  whom  the  legal  sovereign   must  bow." 
Professor  Sidgwick  illustrates  the  point  involved   by 
constructing  hypothetical  oases  in  which  the  ultimate 
political  power  is  clearly  not  in  the  hands  of  the  legal 
sovereign.   "  An  irresponsible  dictator  appointed  by  a 
popular  assembly  for  a  term  of  years  and  not  desiring 
reappointment"  might  be  said  to  be  legally  and  actually 
sovereign.  But  should  he  be  anxious  for  reappointment, 
then  the  assembly  to  whose  wishes  he  must  bow  be- 
comes the  paramount  political  influence,  and  his  legal 
sovereignty  is  noionger  the  final  seat  of  actual  power. 
Or  let  us  "  suppose  that  a  monarch  habitually  obeys  a 
priest,  not  from  fear  of  the  extra-mundane  pendties 
threatened  by  the  latter,  but  from  fear  of  finding  it 
difficult  to  obtain  obedience  from  his  subjects  if  Uiey 
believe  him  to  be  a  special  object  of  God's  anger — we 
shall  agree  that  he  no  longer  possesses  completely  sover- 
eign power."  Following  upon  this  line  of  argument  we 
might  well  expect  to  find  that  the  legal  and  the  political 
sovereigns  would  but  rarely  coincide.    In  one  state  the 
priesthood,  in  another  the  military  or  landed  classes, 
in  another  the  personal  entourage  of  the  king  or  the 
predominant  influence  of  a  metropolis,  might  supply 
the  real  motive  power  that  controls  the  public  adminis- 
tration. 

Here  it  might  well  be  suggested  that  the  sovereign 
political  power  would  in  many  cases  lie  with  the  gen- 
eral mass  of  the  people,  or  at  any  rate  with  the  general 
mass  of  voters,  who  constitute  in  democratic  countries 


66 


TUE  MATURE  OF  THE  STATE 


i    '    f 


♦t 


about  one  fifth  of  the  entire  population.  Austin  him- 
self, in  this  particular,  fell  into  an  amazing  error  in 
that  he  attempted  to  attribute  not  the  political  but  the 
legal  sovereignty  itself  to  the  body  of  the  electorate. 
The  fallacy  *  is  here  obvious.  For  although  the  voters 
are  empowered  by  law  to  elect  members  of  the  legisla- 
ture at  stated  intervals,  they  have  (legally)  no  power 
of  political  action  beyond  this.  Under  most  govern- 
ments they  cannot  pass  a  law  or  negative  measures 
of  the  legislature.  In  Great  Britain,  for  instance, 
the  Parliament  (legally  speaking)  would  be  perfectly 
competent  to  pass  a  law  declaring  its  own  existence- 
permanent  and  robbing  the  voters  of  their  electoral 
privileges.  Only  in  a  country  where  the  system  of  the 
initiative  and  the  referendum'  were  made  obligatory 
and  universal  could  th  electors  be  said  to  be  legally 
sovereign.  But  without  falling  into  this  confusion 
whereby  Austin  mars  the  precision  of  his  own  system, 
it  may  be  argued  with  much  plausibility  that  the  ulti- 
mate political  sovereignty  rests  with  the  electorate. 
Much,  however,  may  be  advanced  against  this  view.  Is 
it  not  quite  conceivable  that  the  voters  themselves  may 
be  under  the  dominance  of  a  priesthood,  or  practically 
under  the  dictates  of  the  land-owners  or  aristocracy  or 
some  particular  class  ?  In  such  cases  the  political  sov- 
ereignty would  have  to  be  traced  a  step  beyond  the 
electorate.  Is  it  not,  moreover,  to  be  supposed  that  the 
electorate  may  be  largely  influenced  by  the  other  four 
fifths  of  the  nation,  who  constitute  the  non- voting  class  ? 

*  Professor  Sidgwick  in  an  appendix  to  hig  Elimentf  of  Politics  de- 
moMtratet  the  absnidity  of  Aoatin's  position. 
'  Sm  part  ii,  chap,  ir,  below,  Jndioiary  and  Electorate. 


THE  SOVEREIGNTY  OF  THE  STATE  67 

It  does  Dot  seem  to  follow  that  the  voters  of  a  demo- 
cratic  country  (dtoajfm  and  of  necessity  represent  the 
final  and  ultimMe  source  of  authorit^\ 

3.  Crtticiam.  Indeed,  the  more  one  searches  for  this 
final  authority  the  more  it  Mems  to  elude  oae'a  grasp. 
At  its  first  statement  the  idea  of  a  political  wivereignty 
appears  eminently  reasonable.  On  closer  examination 
it  becomes  a  sort  of  political  "first  cause,  and  is  as 
unfindable  in  the  domain  of  politics  as  in  that  of  phys- 
ics. The  moment  one  passes  from  the  dry  certainty 
of  the  Austinian  conception  of  legality,  all  is  confusion. 
The  particuhir  set  of  persons  in  a  modern  state  who 
are  invested  with  unlimited  Uw-making  power  are  a 
definite  and  findable  body.  The  particubr  person,  or 
spt  of  persons,  whose  will  is  in  reality  supreme,  fades 
ujton  analysis  into  a  vague  complexity. 

Professor  Ritchie  and  ochf  rs  have  sought  to  avoid 
this  difficulty,  by  laying  ,4(v  i  the  tlieory  that  the  ulti- 
mate repository  of  ."'itH'.-'i  j  .wor  b  always  found  in 
the  mass  of  the  people  • ' v  w  U.-.  ;  rer  routes  it  is  traced, 
whether  directly  thr  ,,..;,  .  .  ;,,*:,  power,  or  indirectly 
through  influence  u  .^-h  ;.,.  ,..  potential  rebellion, 
the  final  source  oi  ^iCn  u  ..  «ro  to  be  discovered. 
"The  people"  possess  M  ^i.y  loij  power.  In  the  last 
resort  — the  appeal  to  foru-  -they  are  bound  to  pre- 
vail. Any  form  of  rule  to  which  they  submit  exists 
therefore  only  by  virtue  of  their  tacit  consent.  We 
have  thus  a  theory  of  popular  sovereignty  carried  to  an 
extreme  point.  Such  a  theory  does  not  content  itself 
with  saying  that  the  people,  the  majority  of  the  people, 
(mght  to  possess  the  supreme  power,  but  that  in  all  cases 
they  actually  do  possess  it.  Having  the  physical  supe- 


I 


tk  *i 


68 


THE  NATURE  OF  THE  STATE 


I 


|i 


fil 


riority  which  would  enable  them  if  sufficiently  pro> 
yoked  to  annihilate  the  existing  government,  there  must 
always  be  limits  to  the  extent  of  coercion  that  they 
will  suffer.  Obedient  as  they  may  be  within  these 
limits,  they  are  in  the  last  resort  the  masters.  The  con- 
sent by  which  they  permit  the  existence  of  the  govern- 
ment, is  a  tacit,  and  perhaps  unconscious,  acquiescence 
rather  than  the  explicit  formula  of  contract  that  was 
present  to  the  minds  of  Rousseau's  citizens ;  none  the 
less  it  is  true  that  they  do  give  this  consent,  and  that 
it  is  the  real  universal  basis  of  political  sovereignty. 
"The  Czar  of  all  the  Russias,"  says  Mr.  Ritchie, 
"  rules  by  the  will  of  his  people,  as  much  as  does  the 
executive  of  the  Swiss  Federation."  ' 

Attractive  as  is  such  a  theory  of  popular  sovereignty, 
it  rests  upon  grounds  essentially  fallacious.  It  assumes 
that  the  superiority  in  actual  physical  force  must  of 
necessity  rest  with  the  mass  —  the  majority  —  of  the 
people.  To  suppose  this  is  to  leave  altogether  out  of 
sight  the  question  of  military  equipment,  organization, 
and  mutual  understanding.    A  nation  of  a  million  nn- 

'  Professor  Ritchie  includes  in  the  sources  of  political  power  all 
those  influences,  historic  aud  actual,  which  contribute  to  the  present 
disposition  and  opinion  of  the  governed.  "  The  ultimate  political  sove- 
reignty is  not  the  determinate  number  of  persons  now  existing  in  the  na- 
tion, but  the  opinions  and  feelings  of  these  persona ;  and  of  these  opin- 
ions and  feelings  the  traditions  of  the  past,  the  needs  of  the  present, 
and  the  hopes  of  the  future  all  form  a  part."  In  the  case  of  the  Russian 
people.  Mr.  Ritchie  argues  that  "'  the  bulief  in  the  Czar's  divine  right 
is  the  source  of  his  power,  and  the  ground  of  his  obedience."  A  similar 
point  of  view  appears  in  M'Kechnie's  State  and  Individual.  "  The  eifect- 
ive  force  of  a  nation  remains  with  the  whole  body  of  its  members, 
whatever  forma  of  expression  or  outlet  it  may  find,  and  whatever  agents 
may  bo  legally  empowered  to  act  or  think  for  it.  The  real  or  '  political ' 
sovereign  lies  in  the  will  of  the  people." 


f   ^ 


THE  SOVEREIGNTY  OF  THE  STATE  69 

armed  men  could  easily  be  overawed  by  a  force  of  a 
hundred  thousand  soldiers  equipped  with  modem  weap- 
ons  and  acting  as  a  disciplined  unit.   Because  a  hun- 
dred  convicts  "  acquiesce  "  in  the  control  exercised  by 
a  dozen  armed  sentinels,  it  cannot  be  argued  that  the 
power  of  the  sentinels  rests  either  immediately  or  ulti- 
mately upon  the  consent  of  these  convicts.   Whatever 
be  the  proper  interpretation  of  the  political  cohesion 
of  modem  Russia,  it  is  at  least  conceivable  that  the  sup- 
port  extended  to  the  autocracy  by  the  vast  army  in  its 
pay  may  have  as  much  to  do  with  its  maintenance  as  the 
good-will  of  the  people  at  large.  It  seems  evident  upon 
examination  that  the  numerical  majority  is  not  of  ne- 
cessity always  the  stronger  power.   It  becomes  so  only 
in  proportion  as  it  enjoys  the  advantages  of  organiza- 
tion,  equipment,  and  ability  to  act  on  a  preconcerted 
plan.   Hence  in  order  to  make  the  theory  of  political 
sovereignty  stand  upright  it  is  necessary  to  again  shift 
the  ground  and  to  claim  that  the  ultimate  sovereignty 
lies  not  with  the  mass  of  the  people,  nor  with  the  nu- 
merical majority,  but  with  the  strongest  group  of  per- 
sons trained  to  act  together.  But  since  a  group  is  usually 
trained  only  to  act  together  in  a  prescribed  way,  and 
at  the  dictates  of  a  particular  person  or  set  of  persons, 
it  is  clear  that  it  is  not  the  collective  will  of  this  armed 
force  itself  which  exercises  the  supreme  control,  but 
that  of  the  person  or  persons  whom  they  are  individu- 
ally  trained  to  obey.    Thus  the  search  for  ultimate  sov- 
ereignty relapses  into  the  same  vagueness  as  before. 

6.  Dnal  or  Divided  Sovereignty.  The  peculiar 
situation  of  the  United  States  in  reference  to  the  ex- 
ercise  of  supreme  and  unlimited  power  has  giv^n  rise 


»  THE  NATURE  OF  THE  STATE 

to  anather  attempt  to  alter  this  universal  formula  of  a 
single  sovereign  body.  In  this  country,  as  already  said, 
neither  the  federal  government  nor  the  gwremment  of 
an  individual  state  has  unlimited  power.  The  precise 
nature  of  the  constitutioual  jx>wer  of  the  two  was  long 
a  subject  of  intense  controveniy.  In  this  controv^sy 
there  was  developed  the  theory  of  a  divided  or  dual 
sovereignty.  According  to  this  doctrkie  the  totality  of 
sovereign  power  was  divided  between  the  state  aad 
federal  goverameute,  each  of  which  was  sovereign  in 
its  own  province,  but  was  legally  limited  ootoide  ai  its 
own  province  by  the  sovereignty  of  the  other.  Sadt 
a  view  of  sovereignty  is  utterly  inconsistent  with  Ike 
conception  of  sovereign  power  discussed  abo<ve.  The 
proper  application  of  the  analytical  view  of  sovereignty 
to  a  federal  government  will  be  discussed  in  dealing 
with  the  general  subject  of  federal  organization. 


READINGS  SUGGESTED 
Austin,  J.,  Lectures  on  Jurisprudence  (4th  edition,  1879),  vol.  i, 

lecture  vi. 
Maine,  Sir  H.,  Early  History  of  Institutions  (1875)  (4th  edition, 

1885),  chaps,  xii,  xiii. 
Sidgwick,  H.,  Elements  of   Politics  (2d  edition,  1897),  chap, 
zzxi. 

FURTHER  AUTHORITIES 

Bryce,  James,  Studies  in  History  and  Jmsprudenoe,  Essay  X 

(1901). 
Merriam,  C.  E.,   History   of  the  Theory  of  Sovereignty  since 

Rousseau  (1900). 
Stephen,  Sir  James,  Horse  Sabbaticte,  Second  Series,  chap,  iv 

(1892). 
M'Kechnie,  W.  S.,  The  State  and  the  Individual  (1896). 
Ritchie,  D.  G.,  Principles  of  State  Interference  (1891). 
Dicey,  A.  V.,  Law  of  the  Constitution  (Ist  edition,  1886). 


CHAPTER  V 
THE  LIKRTT  OF  THE  INDIVIDUAL 

Jil^^^"*"  **'  **"•  '•*•"  °'  ^^  Liberty; 
to  l^teca  OB  a  Coercive  Sovereign  Powi 
ne  i^^atxon  of  the  theory  of  the  sov^eigntT^f 
be  sbite  does  not  exhaust  the  consideration  of  the  re- 
htum,  ««ting  between  the  state  and  the  individual. 
Ihe  present  chapter  is  to  be  devoted  to  the  further 
elueidatwn  of   the  position   of  the  individual   under 

of  .ndmdual  lU>erty.   At  first  sight,  the  ideas  of  state 

sovereignty  and  individual  liberty  appear  in  sharp  con- 

rast    When  we  «y  that  the  state  is  legally  supreme, 

ind  v,dual  can  have  no  lawful  rights  as  against  its 
author,  y  we  seem  to  have  denied  the  existence  of  in- 
dividual  hberty.  A  closer  examination  of  the  meaning 
to  be  attached  to  the  terms  involved  will  serve  to  dis 
8.pate  tins  view.  It  will  appear  that  sovereignty  and 
^berty,  far  from  being  contradictory,  are  correlative 
terms,  and  that  no  legal  conception  .,f  individual  lib- 
«rty  IS  possible  without  the  assumption  of  a  sovereign 


i  WW  " 


*■:   ii-' 


72 


THE  NATURE  OF  THE  STATE 


Let  us  begin  by  observkg  that  saeh  tenn  as  "lib. 
erty,"  "  freedom,"  and  "  free  "  are  used  ui  a  variety  of 
semtes,  and  with  great  latitude  of  connotation.    "To 
Bacon  and  to  King  James."  writes  Professor  Ritchie, 
"  a  '  free '  monarchy  meant  an  absolute  monarchy,  so 
that  a  'free'  monarchy  is  incompatible  with  what  we 
call  'free'  government.    The  'liberties'  of  corpora- 
tions, classes,  or  individuals  mean  their  special  privi- 
leges,  and  thus  involTe  con»derable  interference  wkh 
' liberties'  of  the  non-privileged.  '  Freedom  of  contract ' 
may  result  in  tke  practical  bondage  of  one  of  the  parties 
to  tke  <rther.   A  '  free '  church  may  allow  less  '  liberty  * 
of  thought  than  churches  which  are  not  liberated  from 
the  state."  »    To   the   di£Bculties   suggested   by  these 
spesaal  instances  must  be  added  the  fact  that  the  term 
liberty  is  used  also  as  a  vague  generality  to  stand  for 
seawthing  evidently  desirable,  and  yet  so  simple  in  its 
nature  as  to  need  no  further  definition.    It  is  freely 
assumed  that  every  one  ought  to  have  complete  liberty, 
and  that  every  violation  of  liberty  is  an  injustice,  with- 
out the   need  being  felt  of  any  special  inquiry  into 
the  aeanit^  of  liberty  itself.    To  reduce  the  term  to  a 
d^wte  and  exact  signification  will  serve  at  once  to 
destroy  the  mythical  and  impossible  idea  of  individual 
freedom,  in  the  light  of  which  the  coercive  power  of 
the  state  se^ns  unjustifiable.  Such  an  idea  appears  in 
extreme  form  in  the  assumption,  already  referred  to, 
of  a  "  natural  liberty,"  enjoyed  by  man  independently 
of,  and  antecedent  to,  the  existence  of  the  state,  and  of 
which  the  institution  of  the  state  constitutes  an  abridg- 
ment.   "  What  a  man  loses  by  the  social  contract,"  said 

'  RittAie,  Natmral  Rightt,  dMp.  yu. 


t    • 


THE  LIBERTY  OF  THE  INDIVIDUAL  73 

RoDMeau, «  U  his  natural  Kbe  rty  and  an  unlimited  right 
to  anything  that  tempts  him  which  he  can  obtain"' 
Of  a  similar  char«,ter  is  the  confused  ideal  of  liberty 
which  I«s  at  the  basis  of  anarchism,  or  the  negation 
of  the  right  of  coercion. 

On  examination  it  will  appear  that  such  a  concep- 
tion  of  hberty  is  impossible,  except  it  be  for  one  person 
omnipotent  in  power.   The  claim  that  a  person  in  the 
enjoyment  of  natural  liberty  would  have  an  unlimited 
nght  to  anything  he  might  desire,  wwUd  carry  with  it 
the  consequence  that  a  great  numb,  of  persons  might 
h^  an  unlimited  right  to  the  same  thing.   It  is  d^. 
cult  to  attach  any  meaning  to  the  words  "  liberty  "  and 
right     that  will  make  such  a  proposition  anything 
but  absurd.   Indeed,  the  statement  is  clearly  self^H,n. 
tradictoiy  and  inconsistent.   "Liberty  in  its  absolute 
sense      says  Lieber,=  »  means  the  faculty  of  wiUiuff 
and  the  power  of  doing  what  has  been  wiUed,  without 
influence  from  any  other  source,  or  from  without.  . 
in  this  absolute  meaning  there  is  but  one  free  beiuff 
because  there  is  but  one  being  whose  will  is  absolutely 
independent  of  any  influence  but  that  which  he  wills 
himself,  luid  whose  power  is  adequate  to  Ws  absolute 
will,  -who  ,s  almighty."    It  is  clear,  then,  that  a  lib- 
erty  of  this  absolute  and  unrestrained  character  is  an 
impossibility  for  every  individual  at  the  same  time    It 
can  exist  neither  by  the  agency  nor  by  the  absence  of 
the  state.   The  utmost  freedom  of  action  that  each  and 

*  ''^oc'a/  Co,araa,  bk.  i,  chap.  viii. 
J  F«nzLieber.  Civil  Liberty  (]8r.2).    Lieber  (1800-72),  one  of  the 

mtm  nthtct  (1838)  u  porhapi  the  m«t  imporUat. 


.:l._ 


I  ' 


;    i    ; 


fe  = 


74  THE  NATUBE  OF  THE  STATE 

every  individual  can  enjoy  npon  like  temw  at  the  same 
time  is  to  be  completely  unrestrained  in  his  actions  in 
so  far  as  they  do  not  interfere  with  the  like  freedom 
of  his  fellows.  This  conception  of  liberty,  though  lim- 
ited, is  entirely  self-consist^ut.  The  liberty  of  one  is 
not  a  contravention  of  the  liberty  of  another.  Such 
is  the  interpretation  of  liberty  found  in  the  famous 
Declaration  of  the  Rights  of  Illan,  adopted  in  France 
in  1789 :  "  Liberty  consists  in  the  power  to  do  every- 
thmg  that  does  not  injure  another."  Herbert  Spencer 
expresses  the  same  idea  in  what  he  calls  the  "  formula 
of  justice : "  "  Every  man  is  free  to  do  that  which  he 
wills,  provided  he  infringes  not  the  equal  freedom  of 
any  other  man." 

As  thus  conceived,  liberty  is  not  inconsistent  with 
the  exercise  of  coercive  power.   On  the  contrary,  since 
the  freedom  from  interference  can  only  be  enjoyed 
by  the  forcible  prevention  of  interference,  liberty  is 
seen  to  be  dependent  upon  the  existence  of  authority. 
It  is  the  state  which  guarantees  this  immunity  to  its 
citizens,  whose  "rights"  are  thus  brought  into  legal 
existence  by  being  clothed  with  the  "  sanction  "  or  com- 
polling  force  of  the  power  of  the  state.   The  apparent 
paradox  between  a  sovereign  authority  and  a  free  citi- 
zen is  thus  explained.  No  freedom,  except  for  a  single 
being,  can  be  absolute  and  complete.   Such  freedom  as 
can  be  enjoyed  by  all  must  from  its  nature  imply  a 
compuLory  restriction  on  the  action  of  each.   It  is  the 
office  of  the  state  to  effect  this  restriction,  and  in  so 
doing  to  bring  liberty  into  being.    It  is  usual  to  attach 
to  this  conception  of  individual  freedom  effected  by  the 
existence  of  a  coercive  state  the  term  "  civil  liberty." 


THE  UBERTY  OP  THE  INi)IVIDUAL  n 

A  further  point  of  great  importance  is  to  be  noted 
in  connection  with  the  present  topic.   It  i,  true  that 
hherty  as  thus  defined  is  only  possible  for  the  indi- 
Tidual  by  the  action  of  the  state.   It  does  not  follow 
however,  that  it  is  the  duty  of  the  state  to  find  the' 
.deal  of  Its  action  in  the  maintenance  of  individual 
liberty ;  that  is  to  say,  to  confine  its  operating  to  en- 
forcing  non-mterference,  and  to  extend  its  coercive 
power  no  further  than  is  necessary  to  prevent  the  citi- 
zens from  interfering  with  one  another.   Writers  of 
various  schools,  and  especiaUy  the  individualists  of  the 
earher  nineteenth  centuiy,  have  held  this  to  be  the 
sole  duty  of  government.   The  conception  of  liberty 
seemed  to  them  to  imply  that  no  infringement  of  the 
principle  could  be  justified.   But  the  question  natu- 
raUy  arises  whether  the  state  may  not  be  warranted  in 
exercising  a  positive  as  well  as  a  negative  coercion 
over  Its  subjects.    May  it  not  with  reason  interfere 
with  and  curta.1  the  liberty  of  a  citizen,  provided  that 
the  genei^  good  or  his  own  advantage  is  thereby  fur- 
thered  ?  The  full  treatment  of  this  quLion  will  ^lo^g 
to  our  discussion  of  the  proper  province  of  govern 
ment^  AU  that  need  be  noted  in  themean  timefs  that, 
whether  the  state  is  called  upon  te  maintain  the  liberty 

th«  tr  r  u  '  ""  7^''^''  •*  "  ^'^^  ^^'»-We  that 
the  state  should  mterferc  with  his  actions  in  a  positive 

pat ible  mth  the  existence  of  the  state,  and  can  hardly 
be  thought  of  as  existing  apart  from  it. 

♦i,^n?^'*'**^  ®'°*~  sometimes  attached  to 
tte  Term  Liberty.  The  word  liberty,  in  addition 
to  the  vague  general  use  which  we  have  discarded 


fl 


78 


THE  NATURE  OF  THE  STATE 


I,  I 

ri 

H 


ft 


f 


and  the  definite  conception  of  civil  liberty  which  we 
have  adopted,  has  also  been  used  in  political  writings 
in  other  special  senses.*  It  is  often  used  to  designate 
a  condition  of  national  independence.  When  we  refer 
to  the  present  liberty  of  the  Greeks,  or  the  desire  for 
liberty  on  the  part  of  the  Poles,  it  is  evidently  in  this 
sense  that  the  word  is  used.  It  is  perhaps  convenient 
to  use  the  expression  "  national  liberty  "  to  indicate 
freedom  of  this  kind. 

In  the  next  phce,  there  is  a  use  of  "liberty"  which 
refers  neither  to  freedom  from  interference  nor  to  na- 
tional autonomy.  When  we  say  that  the  United  States, 
France,  and  Great  Britain  enjoy  the  advantages  of  a 
free  government,  we  mean  thereby  a  government  which 
is  chosen  by,  and  which  is  responsible  to,  the  general 
body  of  the  people.  Liberty  in  this  sense,  or  constitu- 
tional liberty,  as  it  may  be  called,  means  popular  govern- 
ment definitely  established.  Historically  speaking,  we 
often  use  the  term  constitutional  liberty  to  refer  to  in- 
stances where  not  all  the  people,  but  only  a  minority  of 
them,  exercised  the  power  of  controlling  the  government. 
In  England  previous  to  the  great  reform  and  exten- 
sion of  the  franchise  in  1832,  the  power  of  government 
was  vested  in  the  hands  of  a  small  minority  of  the 
whole  nation.  Since,  however,  the  body  of  the  people 
followed  in  the  main  the  political  lead  thus  given,  and 
looked  to  the  minority  in  question  (the  voting  class) 
to  protect  them  from  possible  tyranny  of  the  crown, 
we  may  speak  of  this  state  of  things  as  constitutional 

>  An  excellent  »n«lysui  of  the  different  political  Bifn>ifieationa  of 
the  tenn  is  given  in  Profenor  Seeley'a  Introduction  to  Political  Science, 
Leetnrea  V,  VL 


i ' 


THE  UBERTY  OF  THE  INDIVIDUAL  77 

li^rty  Strictly,  however,  the  term  ought  only  to  be 
used  of  a  government  in  which  the  people  rule.  For 
If  the  name  be  applied  to  a  system  in  which  the  gov- 
emment  ,s  responsible  only  to  a  minority  of  the  nation, 
1  .mpl.es  an  unwarrantable  disregard  of  the  political 
status  of  the  majority. 

Profes«,r    Burgess,^   foUowed   by  other  American 
wnters,  sees  fit  to  use  the  term  civil  liberty  in  a  sense 
different  from  that  explained  above.    Burgess  clain.s 
that  most  European  writers  have  undulv  confused  the 
Idea  of  the  state  with  th^t  of  the  government;  the 
state  ought  to  mean  that  fundamental  organization  of 
the  community  by  whose  authority  the  government  is 
created,  anc    the  power  of   the  government  limited. 
The  government  should  mean  only  the  ordinary  mech- 
an.sn»  of  administration. »  It  is  in  this  sense  conceiv- 
able that  the  state  may  set  a  limit  to  the  action  of  the 
government   as  against    the  individual,  and  grant  to 
tfie  latter  certain  privileges  or  immunities  with  which 
the  government  may  not  interfere.    These  immunities 
constitute  the  domain  of  civil  liberty.   In  the  United 
btates,  according  to  this  view,  the  organization  of  the 
State  ,s    ound  in  the  body  that  makes  and  amends 
the  Constitution.   By  the  authority  of  this  body  it  is 
orbidden  to  the  ordinary  gov.ruDont  of  the  country 
(President,  Congress,  ^tr^  ,o  i.,terf.,o  with  the  ri 
hgion  or  the  free  speech  of  ih.  hCn-.h,^;  the  govern- 
nient  may  not  impose  an  export  dv..y,  may  not  make 
a  law  impairing  the  obligation  of  contia...,  or  confer 

»  Political  Science  and  Constitutional  Lau,,  vol  i 

^oyeZ^lT'^A^T"  '■    ^"''•^^  ^"'*«-'-  «^«»*^'^''-  »»«twee»  th. 
government  »nd  the  .Ute  i.  not  here  accepted  .-  ,«liu 


m 

iri 


; 


11.. 


!ft;e 


78 


THE  NATURE  OF  THE  STATE 


^    I 


-t  • 


H 


IM 


a  title  of  nobility.'  The  civil  liberty  of  the  iodividual 
is  therefore  defined  by  Burgess  to  mean  all  those  right* 
thus  granted    to  the  individual  by  the  constitution- 
making  power.    Were  all  /rovemmenti  of  the  same 
forrt)  as  that  of  the  United  .States  this  application  of 
the  term  civil  liberty  would  be  felicitous  and  useful. 
But  as  applied  to  the  governments  of  England,  France, 
Italy,  and  many  other  countries  a  di£Rculty  occurs.   In 
England  the  Parliament  (king,  lords,  and  commons)  is 
supreme.   It  is  therefore  (according  to  this  interpreta- 
tion) the  state.   It  is  also  the  government,  ordinary  and 
regular.    It  is  hence  not  po-^sible  that  it  can  forbid  any- 
thing to  itself  by  its  own  authority,  or  guarantee  the  in- 
dividual the  posscEsion  of  rights  which  it  cannot  legally 
set  aside.   The  conclusion  is  obvious.   There  is  no  civil 
liberty  in  the  constitutional  law  in  Great  Britain.   To 
assert  this   is   properly  equivalent  to  asserting  that 
there  can  be  no  civil  liberty  at  all  under  the  British 
government.   "  I  pass  over  the  subject  of  civil  liberty 
in  the  constitution  of  England  and  France  for  the 
simple  and  entirely  convincing  reason  that   there  is 
none  in  either.'"  This  being  so,  it  may  well  be  doubted 
whether  the  term  is  appropriately  used  in  the  signifi- 
cance  thus  attached  to  it.   A  definition  according  to 
which  the  citizens  of  Hiyti  enjoy  a  wide  measure  of 

1  Conatitntion  of  the  T'nited  States. 

»  Bnrgeu,  Political  Science  and  Constitutional  Law,  toI.  i,  part  u, 
bk.  ii.  .-hap.  r  Bargeaa  does  not  deny  that  there  ia  civil  liberty  in 
Great  Britain,  but  aaya  that  it  is  created  by  statute,  not  by  the  consti- 
tntion.  But  his  position  seems  inconsistent.  For  he  says  (vol.  i,  p. 
174)  that  individual  liberty  "is  a  domain  in  which  the  government 
•hall  not  penetrate."  But  in  discussing  civil  liberty  under  the  British 
•nd  French  systems,  he  asserts  (vol.  i,  p.  262),  "  Every  particle  of  civil 
liberty  in  both  systema  ia  at  all  timea  at  the  mensy  of  the  goTenunent " 


THE  LIBERTY  OP  THE  INDIVIDUAL  79 

cml  liberty,  while  thoM  of  Great  Britain  and  its  oolo- 
me.  poMeas  none  at  all,  becomes  a  little  absurd. 

iiLf''?****  ^••'^  •*  ***•  ^^^  The  question  of 
liberty  and  sovereignty  as  hitherto  discussed  has  been 
purely  one  of  legal  relations.   It  forms,  however,  only 
a  part  of  the  wider  question  of  the  general  relation  of 
the  individual  to  the  state,  or  to  society  at  large.   Tl.e 
view  that  ia  to  be  taken  of  the  position  in  which  the 
individual  stands  towards  the  state  is  of  the  highest 
importance,  for  on  it  wiU  depend  our  decision  as  to  the 
proper  province  of  the  action  of  government  In  what 
has  been  said  in  the  present  chapter  and  in  connection 
with  the  statement  and  criticism  of  the  doctrine  of  the 
wcial  contract,  reference  has  been  made  to  two  con. 
flicting  points  of  view.   In  the  one  instance  the  indi- 
vidual IS  looked  upon  as  a  separate  self^jontained  unit 
who  joins  with  his  fellows  for  the  formation  of  civU 
society  ,n  a  purely  mechanical  fashion.  The  state  from 
this  point  of  view  becomes  merely  a  numerical  aggre- 
l^te.   It  IS  not  justified  in  interfering  with  the  indi- 
vidual  further  than  to  prevent  his  interference  with 
any  one  else.   Such  a  theory  of  social  relations  is  often 
spoken  of  as  an  arithmetical,  mechanical,  or  monad- 
istic  theory  of  society.'    We  have  already  seen  fit 
in  dealing  with  the  social  contract  to  reject  such  a 
view  of  the  relative  status  of  the  individual  and  the 
state. 

As  opposed  to  this  we  have  at  the  other  end  of  the 
scale  what  has  already  been  referred  to  as  the  "  organic 
theory  of  society,"  or  of  the  state.  This  theory,  either 
entire  or  in  partial  form,  occupies  a  krge  place  in  the 

»  S«e  J.  S.  Mackenzie,  Introduction  to  Social  Philotcph^,  oUp.  iiL 


m 


■■-■--    ■     ■lUMKW^'W 


AMCROCOfY  RKOIUTION  TBT  CHART 

(ANSI  and  ISO  TEST  CHART  No.  2) 


^     APPLIED  IM^GE 


1653  East  Main  Street 

Rochester.   Ne»  York        14609       USA 

(716)   482  -  0300  -  Pt,one 

(716)  288-5989  -Fax 


rf 


m 


maa 


80 


THE  NATURE  OF  THE  STATE 


economic,  political,  and  social  philosophy  of  our  time, 
and  merits,  therefore,  a  careful  examination.  What- 
ever be  the  earlier  origins  ^  to  which  it  may  be  traced, 
it  assumed  a  great  prominence  at  the  hands  of  various 
German  writers  of  the  middle  of  the  nineteenth  cen- 
tury, who  advanced  it  in  opposition  to  the  more  me- 
chanical  view  of  society  held  by  the  dominant  individ- 
ualist school  in  economics  and  political  philosophy. 
The  central  idea  of  the  theory  is  to  endeavor  to  set 
aside  the  contrast  between  the  individual  and  the  state 
by  amalgamating  them  into  one.  It  discards  all  such 
ideas  as  mutual  contract,  reciprocal  service,  infrangible 
immunities,  etc.  It  views  the  state  and  the  individual 
as  part  and  parcel  of  the  same  thing,  both  of  them 
being  included  in  what  may  be  called  the  social  organ- 
ism. As  is  the  relation  of  the  hand  to  the  body,  or  the 
leaf  to  the  tree,  so  is  the  relation  of  man  to  society. 
He  exists  in  it,  and  it  in  him.  As  it  is  impossible  to 
consider  that  the  hand  has  a  separate  existence  from 
that  of  the  body,  so  is  it  impossible  to  divorce  the 
individual  from  society.  The  antithesis,  therefore,  be- 
tween the  single  citizen  and  the  collective  state  rests 
upon  a  false  basis,  and  implies  a  view  of  society  that  is 
contrary  to  fact. 

4.   Criticism.   In  criticising  this  theory  it  is  first 


^  The  philosophy  of  the  Greeks  may  be  said  to  afford  the  first  begin- 
nings of  the  organic  theory.  "  Man,"  says  Aristotle,  "  is  a  political  ani- 
mal," and  the  whole  tendency  of  Greek  political  thought  was  to  insist 
on  the  snbordination  of  the  individual  to  the  state.  But  the  elaboration 
of  the  theory  and  its  express  application  to  the  problem  of  gorem- 
mental  interference  belongs  to  the  nineteenth  century.  Such  a  Tiew 
oonld  only  attain  its  full  significance  after  the  eatablishisjut  of  the 
evolationary  theory  of  the  biological  world. 


i  • 


THE  LIBERTY  OF  THE  INDIVIDUAL 


8i 


necessary  to  know  to  what  extent  the  statement  that 
society  is  an  organism  is  intended  to  be  true.  Some 
writers  have  advanced  it  merely  as  an  analogy  designed 
to  elucidate  by  a  striking  comparison  the  nature  of 
social  organization.  The  continuity  and  gradual  evo- 
lution of  the  state,  the  insensible  gradations  by  which 
it  develops  in  efficiency  and  complexity,  are  compared 
to  the  growth  of  a  plant  or  animal.  The  different  de- 
partments, councils,  officials,  etc.,  which  are  found  in 
a  modem  administration,  present  in  their  specialized 
functions  and  adapted  capabilities  an  analogy  with  the 
special  organs  of  a  living  structure.  The  single  individ- 
ual, without  whom  the  state  cannot  exist,  and  whose 
activities  presuppose  the  existence  of  the  state,  sug- 
gests the  germ  cell  which  forms  the  basis  of  a  living 
oi^anism.  Viewed  in  this  light,  the  organic  theory  has 
met  with  a  very  wide  acceptance,  especially  by  the 
modern  German  school  of  writers  on  the  social  sciences. 
It  is  indeed  difficult  to  quarrel  with  this  or  any  other 
contention  as  long  as  it  remains  merely  in  the  form  of 
analogy.  When  we  say  that  society  is  like  an  organism 
we  are  expressing  an  opinion  of  a  very  indefinite  char- 
acter. The  point  of  the  statement  will  depend  on  the 
amount  of  the  likeness.  In  one  sense  every  man  is  like 
every  other ;  in  another  sense  each  man  has  a  different 
appearance.  To  say,  therefore,  that  there  are  certain 
things  about  soci«tv  which  suggest  an  organism,  is  to 
say  what  is  hardly  open  to  refutation.  The  real  point 
of  controversy  comes  in  when  we  consider  how  far  our 
opinions  on  social  and  political  problems  are  to  be  af- 
fected by  this  view.  Is  it  to  be  looked  on  merely  as  an 
interesting  and  ingenious  comparison,  or  are  we  to  se^ 


! 


I  T 


15 


82  THE  NATURE  OF  THE  STATE 

in  it  a  profound  truth  in  the  light  of  which  the  actual 
solution  of  social  difficulties  is  to  be  sought  ? ' 

It  may  perhaps  be  reasonably  claimed  that  the  im- 
portance  attached  to  this  view  by  many  sociological 
writers  is  altogether  exaggerated.  It  is  hard  to  see  in 
what  way  it  offers  a  practical  programme  or  line  of 
direction  in  dealing  with  applied  politics.  The  indi- 
vidualistic theory,  dictating  the  abstinence  of  the  state 
from  all  positive  interference,  had  at  least  the  merit 
of  indicating  a  recognizable  course  of  conduct.  The 
utilitarian  theory,  propounding  the  greatest  good  of 
the  greatest  number  as  the  goal  of  social  effort,  offers 
also  an  objective  point  theoretically  distinct,  however 
much  its  special  applications  might  in  practice  be  open 
to  dispute.  But  the  organic  theory,  in  telling  us  that 
^e  and  our  institutions  grow  and  are  not  made,  hardly 
Oifers  a  practical  guide  to  political  conduct.  It  is  im- 
possible that  we  can  sit  politically  passive  and  watch 
ourselves  grow,  and  it  is  inconceivable  that  the  theory 
ought  to  be  interpreted  to  obstruct  all  deliberate  vo- 
litional effort,  and  to  substitute  for  it  a  self-contem- 
plating passivity.  To  regard  the  organic  theory  of 
society  as  offering  a  definite  solution  of  any  social 
problem  seems  erroneous.  The  true  purpose  that  it  has 
served  has  been  in  helping  to  destroy  the  once  pi-eva- 
lent  conception  that  individual  liberty  must  a  priori 
be  a  good  thing,  and  needs  not  to  be  considered  on  its 
merits. 

S.  Elaborate  Analogies  of  Spencer,  Schaffle, 

'  The  latter  ii  the  opinion  expressed  by  Mr.  M'Keohnie  in  hia  State 
and  Individual,  part  i,  chap.  i.  "  This  theory,"  he  writes,  "  is  not  only 
correct,  but  contaiaa  the  germ  of  the  vhole  truth  of  Political  Philoso- 
phy." 


THE  LIBERTY  OF  THE  INDIVIDUAL  83 

etc.;    the   Fexsonality  of   the   State.    By  some 
authorities  the  organic  theory  has  been  suppoited  not 
as  a  useful  analogy,  but  as  a  literal  truth.  To  establish 
this  fact  they  have  analyzed  in  great  detail  the  indus- 
trial  and  political  structure  of  society,  and  shown  that 
it  conforms  to  the  general  organic  type,  and  is  there- 
fore  literally  and  actually  an  organism.    Of  such  an- 
alysis,  that  offered  by  Herbert  Spencer  is  the  most 
familiar.  Spencer,»  it  is  true,  does  not  entirely  identify 
the  social  organism  with  the  living  organism.   Society, 
he  says,  is  an  organism,  but  "  it  is  not  comparable  to 
any  particular  type  of  individual  organism,  animal  or 
vegetable."  The  analogy  that  he  institutes,  however,  is 
carried  into  such  detail  as  to  stop  little  short  of  identi- 
fication. The  first  point  of  resemblance  is  found  in  the 
fact  that  societies,  like  living  bodies,  begin  as  germs 
(small  wandering  hordes  of  people),  and  increase  con- 
tinually in  mass  and  in  complexity  of  structure.    In 
both  cases  this  increase  in  mass  is  effected  either  by 
simple  multiplication  of  the  units  or  by  union  of  groups. 
Thus  the  organic  integration  of  plants  of  the  lowest 
order,  which  increase  into  a  larger  form  by  "  clustering  " 
into  one,  is  compared  to  the  amalgamation  of  primitive 
tribes.   Multiplication  and  fusion  of  units  may,  in  both 
animal  and  social  growths,  proceed  simultaneously.  The 
progressive  complexity  of  structure  is  shown  in  the 
development  of  society,  as  in  the  development  of  plants 
and  animals,  by       ^tant differentiation  of  special  organs 
for  the  performance  of  special  functions.   In  a  rudi- 
mentary animal  organism  the  same  apparatus  acts  in  an 
imperfect  way  as  stomach  and  mouth,  or  as  stomach 

»  See  Principle*  of  Sociology,  part  U. 


;{ll 


nf^ 


.JBWIJTT 


84 


THE  NATURE  OF  THE  STATE 


and  skin.  Gradually  each  of  these  separate  organs  is 
evolved  and  restricted  to  its  own  function.  An  orisrinal 
spinal  axis  of  an  elbnientary  character  becomes  sepa- 
rated into  its  verte^rated  parts,  the  head  differentiated 
from  the  backbone,  and  the  brain  from  the  skull.  So 
in  society,  separate  classes  —  kings,  priests,  medicine 
men  —  are  differentiated  from  the  original  mass,  and 
assigned  to  their  peculiar  activities.  The  division  of 
labor  in  the  society,  as  in  the  animal,  makes  it  a  living 
whole.  The  industrial  division  of  occupation  among 
weavers,  iron-workers,  food-growers,  etc.,  corresponds 
to  the  independent,  functions  of  stomach,  heart,  and 
lungs.  The  original  structures  are  found,  on  examina- 
tion, to  closely  resemble  the  bodily  structures.  Spencer 
speaks  of  a  manufacturing  district  as  "  secreting  "  cer- 
tain goods ;  a  seaport  town  "  discharges  and  absorbs  " 
them,  performing  a  duty  like  that  of  the  pores  of  the 
skin.  Society  has  its  "sustaining  system,"  or  parts 
devoted  to  alimentation.  These  are  the  great  produc- 
tive industries,  —  the  agricultural  areas,  the  "iron- 
secreting  "  districts,  etc.  There  is  also  the  distributing 
system,  —  the  roads,  railroads,  and  canals,  which  serve 
as  the  blood-vessels  of  the  social  body.  Thr  press,  the 
telegraph,  telephone,  etc.,  serve  as  stimuli,  by  which 
the  nerve  centres  are  moved  to  action.  Finally,  there 
is  in  society,  as  in  the  living  organism,  the  regulating 
system,  —  "nervo-motor"  in  the  one,  "governmental- 
military"  in  the  other.  These  are  evolv';d  by  the 
struggle  for  survival  against  the  rapacity  of  other 
organisms.  "  The  successive  improvement  of  the  organs 
of  sense  and  motion  have  indirectly  resulted  from  the 
antagonisms  and  competition  of  organisms  with  one 


THE  LIBERTY  OF  THE  INDIVIDUAL  86 

another."  The  wars  between  societies  originate  gov- 
emmental  structures,  and  are  .-^uses  of  all  »uch  im- 
provements in  these  structures  as  increase  the  efficiency 
of  corporate  action  against  environing  societies  The 
special  application  of  this  last  comparison  lies  in  the 
argument  advanced  by  Spencer  that  the  govermental 
organ,  like  every  other,  should  confine  itself  to  the 
particular  functions  for  which  it  has  been  evolved  — 
protection  and  defense, -and  should  abstain  from 
wider  action  in  the  field  of  positive  beneficence. 

As  already  said,  Spencer  does  not  completely  identify 
the  social  organism  with  the  living  plant  or  animal. 
Ihe  chief  diflfer  ^ce  is  found  in  the  fact  that  while  the 
parts  of  an  animal  form  a  concrete  whole,  society  is 
"discrete;"  in  other  words,  "while  the  living  units 
composing  the  one  are  bound  together  in  close  contact, 
the  living  units  composing  the  other  are  free  and  not 
in  contact,  and  are  more  or  less  widely  dispersed." 
Hence  the  political  or  social  body  is  sensitive  only  in 
its  units,  whereas  the  animal  organism  has  a  "senso- 
rium"  in  which  its  sentient  existence  is  centred.   Even 
this  distinction  Spencer  is  unwilling  to  unduly  em- 
phasize.  The  units  of  society,  though  not  in  physical 
contact,  affect  one  another  through  the  influence  of 
language  spoken  or  written;  there  is  thus  a  psycho- 
logical continuity  where  physical  coherence  is  lacking. 
A  stiU  more  complete  presentation   of  the   social 
organism  is  offered  by  the  late  Albert  SchafHe,  the  dis- 
tinguished Austrian  statesman  and  economist,  in  his 
"Structure  and  Life  of  the  Social  Body."   Here  the 
comparison  of  social  with  animal  forms  is  carried  to  an 
extreme  poirt,  stopping  little  short  of  complete  identi- 


i 


i 


86 


THE  NATURE  OF  THE  STATE 


fication,  though  the  author  professes  to  be  mindful  of 
the  di£Perences  existing  between  the  two,  and  avoids 
the  explicit  use  of  the  term  organic.  Schiiffle  speaks 
of  the  "morphology"  and  the  "physiology"  of  society, 
the  "  social  limbs  of  technique,"  etc.  If  the  whole  of 
his  vast  work  is  to  be  viewed  as  an  analogy,  it  reaches 
the  point  where  such  elaborate  comparison  ceases  to  be 
either  of  interest  or  profit.  Others  of  the  modern  Con- 
tinental writers  —  for  instance,  Gumplowitz,  the  Polish 
publicist,  in  his  "Sociological  Idea  of  the  State" 
(1892) — flatly  and  absolutely  hold  that  the  organic 
nature  of  the  state  is  to  be  considered  not  as  an  illus- 
tration but  as  a  literal  fact.  Of  a  still  more  extreme 
character  is  the  contention  of  several  of  the  German 
theorists  that  the  state  is  a  person.  The  claim  that  the 
state,  or,  if  one  will,  the  government,  is  a  person  in  a 
purely  legal  sense  of  the  term  is  what  no  one  will 
deny.  The  government  being  an  owner  of  property,  a 
collector  of  taxes,  a  borrower  of  money,  etc.,  can  un- 
doubtedly be  clothed  with  an  abstract  personality.  But 
the  writers  in  question  —  Gierke,  for  example,  in  his 
"Fundamental  Concepts  of  Public  Law"  —  go  beyond 
this.  With  them  the  personality  of  the  state  is  not 
abstract  but  actual ;  out  of  the  "  social  side "  of  each 
individual  composing  the  state  is  compounded  a  new 
person,  a  totality  of  purpose  which  is  the  true  constitu- 
ent element  of  personality.  Bluntschli  even  determines 
the  sex,  maintaining  that  the  state  is  male  and  the 
church  female.' 

6.  Criticism.   This  extreme  theory  of  the  personal- 

^  On  the  subject  of  the  personality  of  the  state  consult  also  Jellinek, 
Mgemeine  Staatslehre  (1900). 


THE  LIBERTY  OF  THE  INDIVIDUAL  87 

ity  of  the  state  it  is  hardly  necessary  to  criticise.   It 
belongs  to  that  class  of  abstractions  which  may  mean 
much  to  the  nation  that  originates  them,  but  which 
seem  to  dissolve  in  passing  through  the  prism  of  Anglo- 
Saxon  literalism.    The  general  organic  theory  merits, 
however,  a  special  treatment.'    Interesting  as  is  the 
parallel  between  the  collective  aspect  of  humanity  and 
the  life  of  a  single  organic  unit,  the  differences  between 
the  two  appear  on  impartial  exanunation  so  great  that 
the  analogy  cannot  be  looked  on  as  a  true  guide  to 
social  iwlicy,  or  a  true  expression  of  man's  relations  to 
his  environment.    The  difference  that  Spencer  masks 
under  the  cognate  terms  "concrete"  and  "discrete,"  is 
in  reality  of  a  fundamental  character.    In  neither  the 
physical  nor  the  metaphysical  sense  of  the  terms  is  it 
true  that  the  inuividual  la  literally  a  part  of  society. 
The  existence  of  each  human  being  is  a  fact  apart.    The 
"  existence  "  of  society  is  only  an  abstraction.   Society 
has  no  single  brain,  no  "  social  sensorium ; "  it  has  no 
single  physical  life.   This  distinction  is  therefore  more 
than  a  mere  divergence  of  special  qualities.    It  is  es- 
sential and    ..      ;        —it  is  the  difference   between 
"  black  "  a-  !  u,"  and  between  "  yes  '  and  "  no." 

Even  if  w€    >;  Jie  analogy  as  only  an  analogy,  it 

does  not  folluv,  vhat  it  is  always  a  proper  guide  for 
our  social  conduct.  Too  great  an  amalgamation  of  the 
individual  and  the  state  is  as  dangerous  an  ideal  as  a 
too  great  emancipation  of  the  individual  will.  Individ- 
ual variation,  individual  "  unlikeness,"  and,  in  a  sense, 

1  Fop  criticUm  of  the  organic  theory  see  J.  S.  Mackenzie,  Introduction 
to  Social  Philosophy,  chap,  iii,  and  W.  W.  Willoughby,  The  Nature  of 
Me  Staxe,  chap.  iii. 


3  ! 


'I 


! 


I  : 


88  THE  NATURE  OF  THE  STATE 

indiridual  isolation  of  effort  is  as  necessary  for  the 
welfare  of  mankind  as  collective  activity  and  mutual 
support.  The  organic  theory  of  society,  deprived  of  its 
ingenious  biological  setting,  presents  only  one  phase  of 
the  truth,  erring  in  one  directiuii  as  much  as  extreme 
individualism  has  erred  in  the  other. 


READINGS  SUGGESTED 

Seeley,  Sir  J.  R.,  Introduction  to  Political  Science  (1896),  Leo* 
turea  V,  VI. 

M'Kechnie,  W.  S.,  The  State  and  tbe  Individual  (1896),  chap, 
xxii. 

Giddings,  F.  H.,  Principles  of  Sociology  (1899),  bk.  i,  chap.  iv. 

FURTHER  At-HORITIES 
Ritchie,  D.  G.,  Natural  Rights  (1895). 
Lieber,  F.,  Civil  Liberty  (1852). 
Mill,  J.  S.,  Liberty  (1859). 

BurgcM,  J.  W.,  Political  Science  and  Cunatitntional  Law  (1898), 
vol.  i. 

Mackenzie,  J.  S.,  Introduction  to  Social  Philosophy  (2d  edition, 
1895). 

Spencer,  H.,  Principles  of  Sociology,  vol.  i,  part  ii  (3d  edition. 
1893). 

Schaffle,  A.,  Bau  und  Leben  des  Sozialen  Korpers  (2d  edition. 

1896). 
Jellinek,  G.,  Das  Recht  des  Modernen  S:'<»ates  (1900). 
Fichte,  J.  G.,  Science  of  Rights  (translation,  1889). 
Woolsey,  T.,  Political  Science,  vol.  i  (1878). 


j 


CHAPTER  VI 
RELATION  OF  STATES  TO  ONE  ANOTHER 

1.  Ejternal  Aspect  of  the  SUte;  Regulation  of  it«  Conduct  toward* 
other  Sutet.  2.  Evolution  of  International  Relation*:  Fir*t,  ijec- 
ond.and  Third  Period*.  3.  Scope  and  Content  of  InterMtiondlLaw. 
4.  Propriety  of  the  Term.  6.  International  Arbitration. 

1.  External  Aspect  of  the  State ;  Regulation  of 
iti  Conduct  towards  Other  States.    Viewed  in  a 
purely  theoretical  light,  every  state  is  an  absolutely 
independent  unit.   Its  sovereignty  is  unlimited,  and  it 
renders  political  obedience  to  no  outside  authority; 
it  has  no  organized  coercive  relation  with  any  other 
political  body.   Such  theoretical  isolation  is  the  prime 
condition  of  its  existence  as  a  state,  and  its  political 
independence  is  one  of  its  essential  attributes.  This  is 
what  Hobbes  meant  in  saying  that,  in  regard  to  one 
another,  separate  states  are  to  be  viewed  as  in  a  "  state 
of  nature."   Yet  while  this  is  true  in  a  purely  formal 
and  legal  sense,  it  is  nevertheless  the  case  that  in  actual 
fact  different  states  stand        close  contact  with  one 
another  in  a  variety  of  wayt     The  mutual  intercourse 
and  communication  of  their  citizens,  trade,  commerce, 
and  various  common  interests,  bring  separate  states  into 
permanent  relations  demanding  some  sort  of  regulation. 
The  fact  that  in  the  civilized  worid  the  citizens  of  or.o 
country  very  largely  share  in  the  thought,  the  art,  and 
the  literature  of  neighboring  communities,  runs  coun- 
ter to  the  idea  of  political  exclusivenesr    The  politi- 


II 


If 

If 

I  J! 


^fVMP 


00 


THE  NATURE  OF  THE  STATE 


f  H 


cal  as  well  m  the  social  and  cultural  institutions  of  any 
modern  state  are  largely  affected  by  its  contact  with 
other  states.    Esiiecially  is  this  the  case  where  the  citi- 
zens of  countries  politivully  separate  tipeuk  a  cumniuu 
]tiuguage,  and  where  a  kindred  descent  enables  theiu 
to  1  ok  back  to  the  same  liistory  and  traditions  in  the 
past- 
It  is,  therefore,  easily  understood  that  in  the  evolu- 
tion of  their  dealings  with  one  another  in  relation  to 
diplomacy  and  civic  intercourse  the  action  of  modern 
states  shows  an  increasing  tendency  to  conform  to  a 
generally  recognized  usage.   Even  the  conduct  of  war 
is  adapting  itself  to  a  code  of  regulations,  designed  to 
mitigate  as  far  as  may  be  the  suffering  it  involves, 
and  to  reduce  to  a  minimum  the  injury  it  occasions 
to  the  commerce  of  the  world.   These  rules  and  usages 
which  regulate  the  peaceful  intercourse  of  independent 
nations,  and  indicate  a  recognized  method  of  warfare 
adopted  by  general  consent,  are  not  to  be  regarded  as 
fixed  and  pcvmanent.    They  are  rather  in  a  formative 
and  imperfect  stage  of  development.   But  the  study 
of  modem  political  institutions  .s  not  complete  with- 
out an  analysis  of  the  nature  of  the  bond  thus  created 
between  different  states,  the  extent  of  it?  obligation, 
and  its  especial  significance  for  the  futuie.     Politi- 
cal science  must  take  account  not  only  of  the  internal 
organization  of  the  state,  but  of  its  external  relations 
in  so  far  as  they  assume  a  rpgu^ar  and  definite  char- 
acter. 

Imperfect  as  they  are,  the  "  rules  which  determine 
the  conduct  of  the  general  body  of  civilized  states  in 
their  derlings  with  one  another  are  termed  Intema- 


i* 


RELATION  OF  STATES  TO  ONE  ANOTHER  oi 
tional  Law  "  •  The  question  at  once  ari«.  whether  the 
ex^^nce  of  .uch  regulation,  ..„  be  hunnoni  ed  wUK 
the  sovereignty  of  the  individual  state.    As  w.  Z, 

stncted  to  the  command,  express  or  tacit,  of  a  supr.  „e 
kgal  au thonty ;  we  have  seen  that  it  is  /.obaVl/bex 
p«dient  to  use  .t  in  refe..nce  to  customary  observane, 

not  deliberately  controllable  by  a  political  superiorT 
othe  words  law  has  been  restricted  to  mean  the  con" 
mand  of  the  state,  the  two  terms  being  correlative  to 

whether  the  term  .nternational  law  is  properly  applied 
and  whether  the  sanction  or  compellL  force  £' 
It.  rules  ^d  regulatfons  is  suffieie^  to!n  ^ei^t^  le 
con^dered  as  really  law.   To  undertake  this  inq uit  ' 
will  be  necessary  first  to  pass  ve.y  briefly  in  revTew 
the  evolution  of  international  relates,  an  J  their 
pr^tafon  put  upon  them  in  political  theory,  and  in  the 
-econd  place  to  indicate  the  scope  and  extent  of    h! 
rules  of  international  law  as  norexisting.   By  do Lg 
^.8,  Its  true  character,  both  as  it  is  anS  as  U  may 
become,  will  be  set  in  a  clearer  light  ^ 

2.  Evolution  of  International  RelationB:  Tirst 
Second,  and  Third  Perioda^   ru         i    •        . 
.        ^.       ,  "  ■^enoos.    ihe  evolution    if  in 

teraafonal  relations  may  1»  divided  into  th,  .' 

"aees.  The  fi..  embracL  .he  perie:!  C  ^0^: 

pre  tl^e  «co„d  extend,  from  thaldate  until  the peaee^f 
lVestphal.aa648),and  the  third  period  Iron,  therace 

This  is  the  definition  given  by  Professor  T   T  T  , 
tional  Law  Chan  ii    In  .*»        .•       ^\°"*'<"  ^  •'■  Lawrenet-  {Interna- 


92 


THE  NATURE  OF  THE  STATE 


4  ;^l 


of  Westphalia  until  the  present  day.'  During  the  first 
period  we  find  no  recognition  of  international  obliga- 
tions as  such.  The  claims  and  duties  associated  with 
kinship  were  recognized  as  a  bond  between  communis 
ties  of  a  common  descent  and  tongue.  But  between 
tribes  and  nations  alien  to  one  another  there  was  no 
recognized  system  of  peaceful  intercourse  or  acknow- 
ledged principles  of  legitimate  warfare.  The  tribes  of 
the  Israelites  observed  in  the  dealings  with  one  another 
the  bond  of  common  birth ;  they  viewed  themselves  as 
forming  a  political  system,  each  member  of  which  had 
certain  indefinite  obligations  towards  the  others,  while 
all  of  them  were  disconnected  from  the  outer  world  of 
GFentiles.  In  the  same  way  the  city  states  of  ancient 
Greece,  though  jealously  guarding  their  political  auto- 
nomy, felt  themselves  bound  by  the  ties  of  race  to  their 
fellow  Greeks,  a  relation  which  found  its  expression 
in  the  Amphiktyonic  Council,  the  federations  of  cities, 
and  the  observance  of  a  rudimentary  code  of  warfare. 
But  towards  the  outside  world  —  the  barbarians,  as  the 
Greeks  call  them  —  no  such  obligations  existed.  In  so 
far  as  the  Greeks  recognized  a  system  of  interstate  re- 
lations, it  was  applicable  only  to  the  Hellenic  people. 
The  Romans,  also,  previous  to  their  imperial  aspirations 
of  universal  don^inion,  occupied  the  same  theoretically 
isolated  position.  Rome,  it  is  true,  during  the  repub- 
lican period  of  her  history,  entered  into  treaties  with 
the  Samnites  and  other  Italian  tribes.  They  had  also 
certain  systematic  observances  which  bear  some  re- 
semblance to  a  code  of  international  conduct.   But  the 

*  Dirimon  given  by  Lawrence,  International  Law.  See  aI«o  Walke 
History  qfthe  Law  of  Nation*,  Halleck,  International  Law,  ohap.  i 


h. 


8ELATI0N  OP  STATES  TO  ONE  ANOTHER     «3 
Ju.  reciate  was  merely  .  ,y,tem  of  ceremomal  acts 
wh.ch  c„„,.„„ted  the  formalities  thought  neoeZv7„^ 
.  deoWion  of  „ar,  the  o„„cl„,i„/„(  a^^et 
Tl,e  J,sGe.U.,n,  offer,  i„  i„  „,„,  „  ^„       /'  '^• 
alog,  w,  h  „.ter„atiooal  la„.    lu  p^i,,  ^..^^^^^ 
matter  of  some  controversy,  but  it  is  «.f,  t„  "ay  hat 
"wasaeodeof  regulations  whioh  applied  not  I  .he 
dealmg.  of  one  nation  with  another,  but  to  the  deaHng 
of  c,.,sens  belonging  to  Afferent  nations.   It  tlk  1 
nam.  most  probably  from  the  fact  that  it,  rnlt  „e« 
presumed  to  consist  of  principle,  of  conduct  Zlon 
to  the  Uw.  of  all  nation,..  But  in  none  of  these  Z, 
io  »e  get  a  standing  theo,y  of  international  ZZs 
Conduct  towards  outside  nations  might  of  cou™T 
mauenced  by  motives  of  religion,  of  ^friend.W;~  ^ 

^^s';  rrtt".::?'"''  ■"•^^'"""^  ^ » '^- 

^,j,:    r      •    .  relative  position  ocenpied  bv 

pohtical  ««ieties,  each  possessing  toward,  tte  r«t 

du«:*        ""'"'  "'"'  "^"""S  "«■"•  "■-'  •'anZg 

tabli  ™™« .""  »»"°°'>  Period,  that  foUowing  the  es- 
tab hshment  of  the  world  empire  of  Home,  w,  find  the 
ontlook  entirely  ehang«I.  The  Romans  had  ml 
themselves  masters  of  the  known  world  and  fL  the 

of  poluical  relations.  The  universal  sovereignty  of  I 
"ngle  power  became  the  dominant  idea,  the  theo  JL 
ground  plan  of  political  institutions.  The  idea  of  aeT 
aon  .npenor  holding  the  supremacy  over  all  the  ^rti 

term  ju*  gentium  used  in  r^lL     \  ^"'°"''  "'»*^"''«''  «'  *»•« 


li 


i;'f 


M 


THE  NATURE  OF  THE  STATE 


ical  subdivisions  of  the  world  appealed  at  once  by  its 
grandeur  and  its  logical  consistency.  It  endured  in 
theory  long  after  it  had  vanished  in  fact.*  Even  as  a 
fact,  universal  sovereignty,  in  territorial  extent,  if  not 
in  intensity,  seemed  at  the  time  of  Trajan  (a.  d.  98- 
117)  to  reach  its  realization.  The  "  appeal  to  Cajsar  " 
represented  everywhere  the  recourse  to  a  final  author- 
ity. The  actuality  thus  lent  to  the  conception  was 
strengthened  by  the  universality  of  the  Christian  reli- 
gion, which  became  after  the  conversion  of  Constan- 
tine  (a.  d.  312)  the  state  religion  of  the  imperial 
system.  Even  after  the  decline  of  the  imperial  power 
under  the  disruptive  force  of  the  barbarian  invasions, 
the  idea  of  universal  dominion  as  a  necessary  basis  of 
political  life  still  survived.  The  restoration  of  the  Ro- 
man Empire  by  Charlemagne  (a.  d.  800)  served  to  give 
expression  to  this  ideal.  But  in  the  succeeding  centu- 
ries the  conception  of  the  nature  of  the  political  con- 
stitution of  the  universe  underwent  a  vital  change. 
The  church  presented  itself  not  as  a  complementary, 
but  as  a  rival  power.  It  became  necessary  in  theory 
to  divide  universal  dominion  between  the  secular  and 
the  spiritual  sovereigns,  whose  conflicting  pretensions 
helped  to  break  down  the  conception  of  a  single 
final  authority,'  The  feudal  tenure  of  land  gradually 
brought  into  prominence  the  notion  of  territorial  sove- 
reignty (political  power  operative  not  as  over  a  people 

*  Dante,  in  his  Z)«  Monarcltia,  arguing  on  the  imperial  side  of  the 
great  controversy  of  the  middle  ages,  undertakes  to  show  the  need  of 
a  single  emperor,  or  sovereign,  with  power  over  all  others. 

*  For  the  g^at  raediisval  controversy  between  the  empire  and  the 
papacy  see  Bryce.  Holi/  Roman  Empire,  and  Dunning,  Poiitical  Thecriu 
Ancient  and  Mediaval, 


RELATION  OF  STATES  TO  ONE  ANOTHER      96 
but  over  a  certain  definite  territory),  on  the  basis  of 
which  arose  the  modern  theory  of  territoriaUy  inde- 
pendent  states.   Finally  the  religious  schism  of  the 
Keformation  destroyed  the  idea  of  the  spiritual  unity 
of  mankind.   The  peace  of  Westphalia  (a.  d.  1648) 
which  closed  the  thirty  years'  war  in  central  Europe' 
between  the  forces  of  Catholicism  and  Protestantism 
may  be  taken  as  indicating  the  close  of  the  era  and  the 
final  disappearance  of  the  theory  of  universal  sove- 
reignty. 

During  the  third  period —  from  1648  until  the  pre- 
sent  day -the  theory  of  international  relations  has 
been  reconstructed  on  a  new  basis  of  political  independ- 
ence and  territorial  sovereignty.   Modem  international 
law  IS  essentially  the  product  of  this  period.  At  the 
opening  of  this  era  the  destruction  of  the  earlier  sys- 
tem and  the  ideas  which  accompanied  it  seemed  to 
have  removed  the  basis  of  international  dealings  and 
to  reduce  the  monarchies  of  Europe  to  the  anarchy  of 
the  state  of  nature.   The  savagery  of  the   European 
wars  of  the  sixteenth  and  seventeenth  centuries  threw 
into  a  strong  light  the  need  for  a  reconstruction  of  the 
theory  of  the  interrelation  of  political  communities, 
now  that  the  idea  of  a  single  common  superior,  either 
temporal  or  spiritual,  was  no  longer  tenable.   It  was 
this  situation  which  called  forth  the  writings  of  the 
great  Dutch  jurist  Hugo  Grotius,  in  which  were  laid  the 
foundations  of  modern  international  law.   Grotius  and 
his  followers  '  found  the  basis  for  their  doctrine  of  in- 

P  'J^^  ff^°"^  °^  ^™'""'  "  '"^  ^'  J"''  ^'"'  "<=  ^""^  (1625). 
f  uffendorf  (a  German,  for  some  tim«  nocretarv  of  «tate  ar  StockLol.n) 
published  h»  De  jure  Naturae  et  Gentium  in  1072;  Bynk«mhoek'. 
Quaestwnet  Juris  Publici  appeared  in  1737. 


I  I 


iV 

i'- 
f-i 
fl 


•  I 


'  »  ■  , 


M  THE  NATURE  OP  THE  STATE 

ternational  obligations  in  the  reconstruction  of  the  idea 
of  a  law  of  nature  long  ago  assumed  by  the  Stoic  philo- 
sophers  ir  reference  to  the  relations  of  individual  men. 
According  to  this  doctrine  there  was  supposed  to  exist 
in  the  very  nature  of  things  a  code  of  moral  obliga- 
tions of  man  to  man,  which  did  not  depend  for  its 
validity  upon  human  enactment.   It  existed  antecedent 
to  any  system  of  government  and  law  and  could  be  dis- 
covered by  the  natural  light  of  reason.    "The  princi- 
ples of  natural  law,"  says  Grotius,  "  if  you  attend  to 
them  rightly,  are  in  themselves  patent  and  evident  al- 
most in  the  same  way  as  things  which  are  perceived  by 
the  external  senses."   Such  a  theory  of  natural  law  is 
essentially  fallacious,  and,  as  has  been  already  seen,  it 
disintegrates  upon  a  closer  analysis.*  Nevertheless  it 
served  a  useful  purpose  in  offering  a  possible  starting, 
point  for  constructing  a  system  of  mutual  rights  and 
duties  existing  between  states  without  a  common  supe- 
rior.  This  theoretical  assumption  of  a  determinable 
and  universally  binding  law  of  nature,  though  it  affords, 
historically  speaking,  the  starting-point  of  international 
law,  is  by  no  means  its  only  source  and  basis  as  it  now 
exists.   The  major  part  of  it  rests  upon  the  successive 
treaties  and  conventions  by  which  the  great  states  of 
the  world  have  adopted  certain  more  or  less  defined 
principles  to  rjgulate  their  intercourse  with  one  an- 
other  in  peace  and  war.   At  the  beginning  of  the  era 
stands  the  treaty  of  Westphalia,  to  which   all  the 
Continental  sovereigns  of  Europe  (except  the  Pope 
and  the   Sultan)   were  parties,  and  in  which  "the 

>  In  reference  to  the  history  and  criticism  of  the  theory  of  a  law  of 
nature  Professor  Ritchie's  Natural  Riyhu  may  be  consulted. 


f*# 


T 


RELATION  OF  STATES  TO  ONE  ANOTHER     97 
representatives  of  civilized  Europe  united  to  formally 
proclaim  the  erection  upon  the  ruins   of  woild-sove- 
reignty  of  an  international  system  of  states,  unequal 
indeed  in  power,  but  claiming  each  to  be  independent 
and  each  to  exercise  an  exclusive  jurisdiction  within 
definite    territorial   limits.'"    Of    the    later    treaties 
some  are  mainly  concerned  with  the  allotment  of  ter. 
^1*71^;  ^1.*^"   character   is   the   treaty  of    Utrecht 
ClUd),  which  closed  the  long  war  against  Louis  XIV 
and  the  treaty  of  Paris  (1763)  at  the  end  of  the  Seven 
rears  War.   In  others  a  fundamental  point  is  the  re- 
cognition  of  sovereignty,  as  in  the  treaty  of  Versailles 
Cliad),  recognizing  the  independence  of  the  United 
States,  and  in  the  treaty  of  Paris  (1856),  in  which  the 
independence  and  integrity  of  the  Ottoman  Empire 
IS  guaranteed '  and  whereby  it  is  admitted  "into  the 
public  law  and  system  of  Europe."   In  other  treaties 
pnnciples  of  conduct  are  adopted  for  future  guidance. 
Thus  at  the  Peace  of  Utrecht  four  of  the  signatory 
powers  accepted  the  principle  that  real  property  con- 
fiscated  from  the  subjects  of  an  enemy  should  be  re- 
turned  at  the  close  of  the  war.   The  treaty  of  1841  =»  in 
regard  to  the  navigation  of  the  Dardanelles  and  the 
Bosphorus  asserts  the  territorial  jurisdiction  of  a  state 
over  adjacent  waters.   The  international  law  in  respect 
to  neutral  commerce  and  maritime  capture  has  been  the 
subject  of  a  long  series  of  treaty  clauses.    The  princi- 
ple that  "  free  ships  make  free  goods,"*  adopted  (from 

1  Walker,  (^,  cit.,  part  i,  chap.  ii. 

I  ?  ^'!  ^1*"'"'  '^"''*^*'  ^'^"''"'  ^•^'»'  R"««'  »»d  Sa«iinia. 
Sxgaed  by  Austria.  France.  Great   Britain,  Prnssia,  Ru^ia,  and 
1-nrkey.  See  Al«on,  U^torj,  of  Europe  from  the  Fall  of  Napoleon,  voL 

'  see  L.awreuce,  op.  ctt. 


iil 


i 


m 


88  THE  NATURE  OF  THE  STATE 

older  precedents)  by  the  United  States  in  the  French 
treaties  of  1778  and  1800,  gradually  gained  a  general 
assent  and  was  recognized  in  1856  in  the  Declaration 
of  Paris,  which  accompanied  the  treaty  already  men- 
tioned.  An  equally  important  instance  of  principles 
of  international  conduct  consolidated  by  treaty  is  seen 
in  the  treaty  of  Washington  (1871),  between  tha 
United  States  and  Great  Britain  ;  here  the  duty  of  neu- 
tral  powers  to  use  a  proper  diligence  in  preventing 
their  territory  from  being  used  as  a  basis  of  operation 
and  equipment  by  a  belligerent  is  accepted  as  a  bind- 
ing  rule.' 

In  addition  to  deliberate  assent  to  treaty  provisions 
nations  may  express  their  adherence  to  rules  of  inter- 
national  conduct  in  various  other  ways.   Public  docu- 
ments  issued  by  a  state  in  the  form  of  proclamations  or 
manifestoes  to  its  subjects  on  the  outbreak  of  a  war, 
enjoining  their  observancj  of  certain  regulations  in  ref- 
erence  to  belligerents  and  neutrals  are  of  this  class.   A 
further  source  of  international  law  may  be  found  in  the 
decisions  of  prize  courts,  or  special   tribunals  whose 
business  it  is  to  adjudicate  on  the  legality  of  captures 
made  at  sea  in  time  of  war.  Lastly  may  be  cited  the 
opinions  expressed  by  the  great  jurists  who  have  written 
on  the  subject.   It  goes  without  saying  that  the  mere 
opinion  of  any  indi  idual  writer  has  of  itself  no  ^ind- 
ing  force.   But  since  ail  written  laws  and  regulations 
must  be  submitted  to  the  process  of  interpretation,  the 
opinion  of  an  eminent  specialist  as  to  the  proper  inter- 
pretation of  a  recognized  formula  is  evidently  of  force, 
and  it  has  always  been  customary  to  cite  as  testimony 
»  Text  of  treaty,  art  6.  See  Annual  Begister,  1871. 


*  *'■ 


HELAnoN  OF  STATES  TO  ONE  ANOTHER     M 
tie  opinioM  of  iDtM„«i„Ml  jurist..   Kent  in  his  "  C„n, 
■aentarie.".  .^tes  the  point  thu.-  ..t',  ,  ■ 

«»  Prinoipa.  joHst,  .^e%,e  pZn.jL'ZC':' 

3.  Scop,  „d  Coatmt.  of  IntomaUoma  Law 
rrilh         I     ""^n-ational  code  that  has  grown  „„ 

■wr  o»  Mparatc,  independent  slates,  all  of  whinh  .™ 
absolately  e<,„al  in  rights.    -No  prineipl    ItLl 

Marshall,     than  the  perteet  e,naHly  of  nations.  Bnssia 
and  Geneva  have  equal  rights.   It  „s„lts  fr„rthis 

«-U  ordinal  p„positiontr.rr:^^^^^^^^^ 
sove,^^     """  1  i""'^-''-"'  the  reUtion  of      e 

.™a«-    "  ith  this  IS  connected  the  question  of  the 

;™,  original  i..J:T::iz^^:  ^ziz 

torconsUute  the  subject-matter  of  international  la» 

'  Commtntarics,  Vol.  i,  p.  19. 


f{ 


! 


100 


THE  NATURE  OF  THE  STATE 


M  applied  to  nations  at  peace  with  one  another, — 
the  "  law  of  peace,"  aa  it  is  called.  The  larger  part 
of  the  code,  however,  is  occupied  with  the  rules  of  war. 
Unfortunately  international  law  is  as  yet  unable  to  offer 
any  binding  system  according  to  which  disputes  may 
be  settled  in  a  peaceful  manner.  It  is  therefore  com- 
pelled to  assume  that  controversies  will  in  the  last 
resort  be  settled  by  force  of  arms.  The  best  that  it 
can  do  in  this  case  is  to  prescribe  certain  regulations 
whereby  the  conduct  of  war  may  be  as  humane  as  pos- 
sible and  may  occasion  the  least  possible  injury  to  the 
property  and  commerce  of  non-combatant  powers.  For 
this  purpose  international  law  defines  the  legitimate 
agents  and  methods  of  war ;  it  prohibits,  for  example, 
the  use  of  bullets  which  occasion  needless  suffering,  the 
recourse  to  assassination,  poisoning,  etc.  It  indicates  for 
the  use  of  belligerents  a  system  of  communication  with 
one  another  by  flags  of  truce,  passports,  and  safe  con- 
ducts. What  is  still  more  important,  international  law 
contains  an  elaborate  set  of  regulations  in  regard  to  the 
rights  and  obligations  of  neutral  states  in  time  of  war  ; 
as  far  as  possible  it  permits  the  trade  of  neutral  ships 
to  and  from  the  ports  of  belligerent  powers  to  continue 
undisturbed.  Only  when  the  trade  in  question  is  with 
ports  actually  blockaded,  or  consists  in  a  commerce 
of  articles  useful  for  purposes  of  war,  does  it  become 
legitimate  for  a  belligerent  power  to  interfere  with  it. 
It  is  in  particular  the  law  of  neutrality  that  has  been 
extensively  developed  in  the  eighteenth  and  nineteenth 
centuries,  and  it  now  constitutes  the  most  important 
part  of  international  law. 
4.  Propriety  of  the  Term.   Taken  altogether,  this 


RELATION  OF  STATES  TO  ONE  ANOTHER    101 

Bystematized  regulation  of  international  dealings,  both 
in  peace  and  war,  presents  an  imixjsing  appearance, 
and  the  code  of  rules  which  are  thus  adopted  l)ear8  a 
strong  analogy  to  the  internal  or  municipal  regulation 
of  any  particular  state.   But  it  will  be  clear,  from  what 
has  gone  before,  that  there  is  a  difference  between  the 
two  of  an  important  character.   The  observanca  of  the 
municipal  law  is  compulsory  ui>on  the  individual  citi- 
zen.  If  he  attempts  to  violate  it  he  is  restrained,  or  at 
any  rate  punished  after  the  fact  by  the  physical  force 
controlled  by  his  government.   But  there  is  no  such 
definite  obligation  upon  the  individual  state  to  comply 
with  the  principles  of  international  law.  A  state  which 
undertakes  to  violate  them  may  or  may  not  meet  with 
punishment ;  the  state  upon  whose  rights  (under  inter- 
national  law)  another  infringes  may  or  may  not  resort 
to  arms ;  and  even  in  the  event  of  armed  conflict  the 
injured  power  may  meet  with  defeat.   Nor  is  there  any 
single  power,  or  group  of  powers,  whose  business  it  is 
to  enforce  these  principles  of  international  conduct. 
International  law  is  devoid  of  an  authoritative  and 
explicit  "  sanction." 

It  is  on  this  ground  that  are  based  the  criticisms  of 
the  applicability  of  the  term  "  internationul  law,"  and 
of  the  status  and  character  of  its  rules,  that  have  fre- 
quently been  advanced.  "  I  think,  my  Lords,"  Lord 
Salisbury  once  said  to  the  House  of  Lords,  "  we  are 
misled  in  this  matter  by  the  facility  with  which  we  use 
the  phrase  international  law.  International  law  has 
not  any  existence  in  the  sense  in  which  the  term  law 
is  usually  underst^otl.  It  depends  generally  upon  the 
prejudices  of  the  writers  of  the  text-books.   It  can  be 


102 


THE  KATURE  OF  THE  STATE 


■  ■  i 
^  - 

i» 

enforced  by  no  tribunal,  and,  therefore,  to  apply  to  it 
the  phrase  Law  is  to  some  extent  misleading."  The 
same  objection  is  urged  in  detail  by  Austin  (the  leader 
of  the  English  analytical  school  of  jurists)  in  his  "  Lec- 
tures on  Jurisprudence."  Since,  according  to  Austin, 
the  estw>nce  of  a  law  lies  in  its  enforcement,  the  name 
**  inti  national  law  "  is  improper ;  the  rules  in  question 
belong  to  the  general  domain  of  what  Austin  calls 
*'  positive  morality,"  or  rules  imposed  by  current  opin- 
ion (as  also  are  the  ''  laws  "  of  fashion  and  the  ''  laws  " 
of  honor),  but  not  coercively  enforced.'  The  regula- 
tions affecting  the  conduct  of  political  ctates  towards 
each  other  could  only  be  termed  "law"  in  the  Austin- 
ian  sense  if  there  were  in  existence  some  superior  power 
competent  and  willing  to  guarantee  their  enforcement. 
Such  a  power  might  be  imagined  as  existing  in  the 
shape  of  a  general  federation  or  league  of  states  pledged 
to  the  recognition  of  the  international  code  and  united 
to  prohibit  any  breach  of  it.  An  arrangement  of  this 
sort,  as  soo- 1  as  it  became  really  valid  and  permanent, 
would  in  reality  bring  the  associated  nations  into  a 
single  >tate.  It  might,  therefore,  be  doubted  whether 
even  in  this  event  the  tei-m  "  international  law  "  would 
not  still  be  a  mifinomer;  for  "nation"  in  this  sense 
being  a  political  and  not  an  ethnological  term,  the 
union  of  the  "  nations  "  under  a  single  law  would  con- 
stitute them  a  single  state. 

As  against  the  point  of  view  adopted  in  such  criti- 
cisms of  the  propriety  of  the  term  "  international  law," 
various  arguments  may  be  adduced.''  In  the  first  place, 

*  Austin,  Jurisprudence,  !•'■  ^ture  V. 

»  Se«  Jellinek,  E*cht  rf«i  ^nen  Staates,  pp.  302-307,  337-341. 


■f 


RELATION  OP  STATES  TO  ONE  ANOTHER    103 

the  objection  urged  by  many  writers '  adopting  a  re- 
Btricted  connotation  of  the  term  "  law "  may  also  be 
applied  here.  We  have  seen  that  law  in  ita  strict  sense 
is  not  applicable  to  a  state  of  society  in  which  life  is 
regulated  to  a  large  extent  by  custom,  and  to  which  the 
idea  of  deliberate  enactment  is  alto;    -^her  alien.   Nor 
is  the  term  in  its  stiict  sense  applicable  to  a  commu- 
nity ir  which  imperfect  political  organization  or  chronic 
anarchy  renders  the  general  obedience  to  regulative 
control  spasmodic  and  uncertain.    Many  writers  have 
therefore  preferred  to  expand  the  sense  of  the  term 
"  law  "  in  order  to  make  its  use  extend  to  societies  of 
this  character,  and  recognize  the  existence  of  "  law  in 
the  making  "  as  well  as  of  law.   Viewed  in  th-s  light, 
international  law  may  be  considered  as  truly  law,  al- 
though as  yet  only  in  an  inchoative  stage ;  it  becomes 
analogous,  as  Sir  Frederick  Pollock  expresses  it, "to 
those  customs  and  observances  in  an  imperfectly  or- 
ganized society,  which  have  not  yet  fully  acquired  the 
character  of  law  but  are  on  the  way  to  become  law." 

Even  at  the  present  stage  of  its  development  inter- 
national law  is  not  so  much  devoid  of  a  binding  sanc- 
tion as  might  at  first  appear.  Where  its  precepts  are 
definite  and  their  meaning  obvious,  the  general  pre- 
sumption of  civilized  opinion  — a  potent  factor  in  the 
world  politics  of  our  day  —  is  against  any  power  acting 
in  violation  of  them.  A  flagrant  disregard  of  inter- 
national law  would  involve  a  decided  loss  of  national 
prestige,  and  offer  a  perhaps  tempting  chance  for  inter- 
vention on  the  part  of  an  outside  power.  The  weak 
part  of  the  system  lies  in  the  fact  that,  in  the  absence 

'  See  Chapter  IV,  above. 


I 


Ij 


101 


THE  NATURE  OP  THE  STATE 


of  MthoriutiTe  interpretation,  it  is  possible  for  any 
power  to  put  its  own  construction  on  the  rules  of  inter- 
national law,  and  to  profess  to  assent  to  their  validity 
while,  in  the  eyes  of  others,  violatinf;  their  provisions. 
To  render  complete  a  system  of  internationul  rcgula- 
tion,  there  would  be  needed  not  only  a  physically 
coercive  power  to  prevent  armed  conflict  between  state 
and  state,  but  aliM>  a  method  for  the  proper  adjustment 
of  contro.ersy.  As  our  municipal  law  necesxitates  a 
set  of  courts  for  the  settlement  of  private  disputes,  an 
international  court,  or  group  of  courts,  would  be  needed 
to  replace  the  recourse  to  arms  hitherto  the  final  method 
of  bettling  international  quarrels.  In  other  words,  the 
realization  of  international  law  demands  the  establish- 
ment  of  compulsory  international  arbitration. 

&  International  Arbitration.  Arbitration,  or  the 
settlement  of  differences  between  independent  states 
in  accordance  with  the  adjudication  of  a  third  party, 
has,  even  in  the  form  of  a  voluntary  recourse  to  such  a 
decision,  only  assumed  any  considerable  proportions  in 
the  last  half-century ;  of  a  compulsory  system  of  arbi- 
tration we  have  as  yet  only  the  merest  beginnings.  It 
is  of  course  true  that  there  have  always  been  examples 
of  disputes  settled  by  the  mediation  of  a  third  party. 
During  the  mediseval  and  early  modern  jieriod,  while 
the  theory  of  a  common  superior  still  persisted,  recourse 
was  often  had  to  the  Pope  as  an  arbiter  between  con- 
tending princes.  But  such  arbitration,  except  in  the 
case  of  the  eel  brated  award  by  Pope  Alexander  VI, 
dividing  the  New  World  between  Spain  and  Portugal, 
and  in  a  few  lesser  instances,  was  not  applied  to  ques- 
tions of  great  magnitude.    In  the  seven  ieenth  and 


RELATION  OP  STATES  TO  ONE  ANOTHER    lOS 
eighteenth  centuriei  international  arbitration  isboarcely 
found,  but  the  circumstances  of  the  nineteenth  have 
especially  favored  the  development  of  the  principle. 
Ihe  increasing  costliness  of  war,  t!.e  dislm^ation  that  it 
occasions  not  only  to  the  industrial  life  of  the  belligo. 
rents,  but  to  that  of  all  countries  asso    ated  with  then, 
the  growing  interdependence  of  general  financial  and 
commercial  operation,  tiiroughout  the  civilized  world, 
put  a  strong  j)reiiiiuni  on  any  methoti  of  settling  quar- 
rels  without  actual  war.   It  is  true,  as  most  wn'ters  on 
the  subject  point  out,  that  as  yet  arbitration  has  not 
been  applied  to  subjects  of  really  vital  importance.    But 
there  have  already  been  instances  of  its  use  in  cases 
in  which,  though  neither  national  existence  nor  honor 
was  at  stake,  pecuniary  and  territorial  claims  of  great 
magnitude  were   involved.    As   between   the   Unitett 
States  and  Great  Britain  arbitration  has  repeatedly 
been  employed,  esi)ecially  for  the  rectification  of  bound- 
ary lines,  as  in  1827  in  regard  to  the  northeast  bound- 
ary,'  and  in  184G  for  the  boundaries  on  the  Paciric 
coast.   Still  more  celebrated  is  the  successful  arbitra- 
tion  of  the  question  of  the  American  claim  for  damages 
on  account  of  the  devastations  of  the  Alabama  and 
other  Southern  cruisers,  a  matter  which,  by  the  treaty 
of  Washington  (1871),  was  referred  to  a  special  tri- 
bunal, an,l  ended  in  the  award  of  a  compensation  of 
115,500,000  to  the  United  States.    Arbitration  was 
also  successfully  en.ployed   in    1889   by  the   United 
States,  Great  Britain,  and  Germany  in  reference  to 
Samoa.  There  have  been  in  the  nineteenth  century  over 

,'  TL*  r'f  r""^"  '"  *'"''  "^  ^^  *••«»  ^'""B  of  the  Netherland.  w*. 
rejected  by  the  United  State*. 


106 


THE  NATURE  OF  THE  STATE 


ff«- 


a  hundred  important  cases  of  arbitration  effected  by 
special  tribunals  or  specially  appointed  umpires. 

A  further  stage  of  development  is  found  in  the 
attempt  to  constitute  a  permanent  tribunal  for  the  set- 
tling of  international  disputes  and  in  the  conclusion  of 
treaties  to  effect  a  standing  method  of  recourse  to  such 
a  tribunal.  After  various  proposals  from  important 
quarters  in  the  closing  years  of  the  nineteenth  century, 
a  successful  plan  was  put  into  operation  by  a  conven- 
tion signed  at  the  Hague  by  the  Great  Powers  in  con- 
nection with  the  Peace  Conference  of  1899.  Under  this 
agreement  a  permanent  court  of  arbitration  is  estab- 
lished. It  consists  of  a  panel  of  distinguished  jurists,  of 
whom  four  are  nominated  by  each  signatory  power,  and 
from  the  total  niunber  of  whom  international  disputants 
may  select  two  each  to  ace  as  arbitrators,  the  persons 
chosen  themselves  adding  an  umpire.  The  procedure 
to  be  adopted  by  the  tribunal  thus  created  is  also  pre- 
scribed. Although  recourse  to  the  tribunal  at  the  Hague 
is  not  obligatory  upon  the  signatory  powers,  it  neverthe- 
less offers  standing  facilities  for  peaceful  settlement 
very  difficult  to  bring  into  being  during  the  strained 
relations  occasioned  by  acute  international  controversy. 

A  second  Peace  Conference  was  held  at  the  Hague 
in  1907  and  was  attended  by  representatives  of  forty- 
five  states.  It  was  chiefly  concerned  with  the  discus- 
sion and  codification  of  certain  portions  of  the  law  of 
war,  but  undertook  also  the  revision  of  certain  details 
of  the  convention  of  1899  in  regard  to  the  settlement 
of  international  disputes.  A  third  Conference  is  to 
meet  in  1917. 


RELATION  OF  STATES  TO  ONE  ANOTHER    107 
The  work  thus  accomplished  has  been  further  sup. 
plemented  by  special  treaties  among  the  powers  which 
thereby  pledge  themselves  to  adopt  a  settlement   by 
arbitration  where  possible.     According  to  the  Interna- 
tional  Peace  Bureau  of  Berne,  one  hundred  and  thirty, 
three  treaties  of  arbitration  were  concluded  during  the 
ten  years  following  the  first  Peace  Conference.     In 
nearly  all  cases  the  agreement  to  submit  to  arbitration 
matters  of  controversy  that  may  arise  between  two 
states  is  made  with  certain  reservations.     Questions 
which  involve   the   independence,  national  honor,  or 
vital  interests  of  a  state  are  excluded  from  the  opera- 
tion of  arbitration.     Thus  it  is  a  condition  of  the  Anglo- 
French  treaty  of  1904,  and  of  those  identical  with  it. 
that  "neither  the  vital  interests  nor  the  independent 
nor  honor  of  the  two  contracting  states,  nor  the  interests 
of  any  state  other  than  the  two  contracting  states  shall 
be  involved."    Such  a  proviso,  unavoidable  though  it 
has  been  in  the  present  state  of  public  opinion,  seriously 
impairs  the  theoretical  completeness  of  the  arrangement, 
since  each  state  must  remain  the  judge  of  its  own  vital 
interests  and  may  therefore  at  any  time  refuse  to  ad- 
mit the  applicability  of  arbitration.    A  few  treaties 
made  by  lesser  states,  as  notably  those  concluded  by 
Denmark  with  Italy,  Holland,  and  Portugal  respectively, 
provide  for  the  submission  of  controversies  of  every 
character  to  a  court  of  arbitration. 

Within  the  limits  indicated  above,  treaties  of  five 
years'  duration  for  references  of  disputes  to  the  Hague 
tribunal  have  been  made,  in  identical  terms,  by  Great 
Britain  with  France,  Italy,  Spain,  and  Germany.    These 


108 


THE  NATURE  OF  THE  STATE 


treaties  provide  that  "differences  of  a  judicial  order  or 
relative  to  the  interpretation  of  existing  treaties  be- 
tween the  two  contracting  parties  which  may  arise  and 
which  it  may  not  have  been  possible  to  settle  by  diplo- 
macy,  shall  be  submitted  to  the  permanent  court  estab- 
lished by  the  convention  of  July  29, 1899,  at  the  Hague." 
In  the  same  way  the  United  States  had  by  1910  con- 
cluded limited   arbitration   treaties  with  twenty-four 
powers,  among  which  were  Great  Britain,  Japan,  Ger- 
many, France,  Austria,  and  Italy.     The  treaty  made 
between  the  United  States  and  Great  Britain  in  1908, 
and  duly  ratified,  pledged  tho!«e  two  states  to  refer  to 
the  Hague  Court  any  controversies  which  could  not  be 
settled  by  means  of  diplomacy,  provided  that  the  issues 
"did  not  affect  the  vital  interests,  the  independence,  or 
the  honor  of  the  two  contracting  states." 

In  1911  the  attempt  was  made  to  carry  still  further 
the  application  of  arbitration  in  disputes  between  Great 
Britain  and  the  United  States.     A  treaty  was  signed 
(August  3,  1911)  by  the  plenipotentiaries  of  the  two 
countries  which  was   to  submit  practically  each  and 
every  dispute  to  a   oourt  of  arbitration.     The  first 
article  of  the  treaty  explained  its  scope  as  follows: 
"All  differences  hereafter  arising  between  the  high  con- 
tracting parties  which  it  has  not  been  possible  to  adjust 
by  diplomacy,  relating  to  international  matters  in  which 
the  high  contracting  parties  are  concerned  by  virtue 
of  a  claim  of  right  made    by  one  against   the  other 
under  treaty  or  otherwise,  and  which  are  justiciable  in 
their  nature  by  reason  of  being  susceptible  of  decision 
by  the  application  of  the  principles  of  law  and  equity, 


RELATION  OP  STATES  TO  ONE  ANOTHER    109 
Khali  be  submitted  to  the  Permanent  Court  of  Arbitra- 
tion  established  at  the  Hague  by  the  convention  of 
Oct.  18,  1907,  or  to  some  other  arbitral  tribunal  as 
may  be  decided  in  each  case  by  special  agreement." 
The  treaty  also  proposed  to  institute  a  joint  high  com- 
mission of  enquiry  for  the  "impartial  and  conscientious 
investigation,"  though  not  of  course  for  the  decision, 
of  international  controversies.    By  tlie   terms  of  the 
agreement  the  treaty  was  to  remain  in  force  until  ter- 
minated by  twenty-four  months'  notice  given  by  either 
contracting  state.   The  attempt  to  obtain  the  ratifica- 
tion  of  f'-j  United  States  Senate  for  this  treaty,  and 
for  a  similar  treaty  negotiated  with  France,  raised  the 
question  of  the  constitutional  rights  and  obligation^  of 
the  Senate  and  the  ratification  of  the  treaties  in  their 
original  form  proved  impossible. 

In  the  light  of  these  recent  developments  the  present 
position  of  international  law  and  international  arbitra- 
tion may  be  considered  as  highly  encouraging.  There 
is  undoubtedly  in  all  civilized  countries  a  large  and  a 
growing  force  of  ^  ,blic  opinion  against  war  which 
makes  strongly  in  favor  of  a  more  and  more  definite 
establishment  of  an  international  code  with  properly 
constituted  tribunals  to  pronounce  upon  its  observance. 
In  many  quarters,  it  is  true,  there  is  a  lingering  feeling 
that  war  must  remain  as  the  "  natural  "  and  honorable 
settlement  of  controversy.  Baronial  war  and  the  pri- 
vate duel  died  hard,  and  undoubtedly  national  war  will 
die  harder  still.  Sir  Robert  Finlay,  attorney-general 
of  Great  Britain  (1904),  has  recently  written  that 
"  there  are  some  questions  which  no  country  will  con- 


109a 


THE  NATURE  OF  THE  STATE 


Bent  to  leave  to  the  judgment  of  any  court  or  arbitra. 
tion ;  every  nation  must  be  the  guardian  of  its  own 
honor."   It  is  not  easy  to  see  why  the  same  reasoning 
would  not  leave  the  individual  citizen  as  the  guardian 
of  his  own  honor  and  insist  on  the  retention  of  the  duel 
as  the  proper  method  of  settling  private  quarrels.  The 
development  of   international  solidarity  is  slow,  but 
it  may  fairly  be  supposed  that  it  will  be  continuous. 
From  the  courtesies  of  international  custom  we  may 
pass  to  the  indeBnitely  binding  code  and  thence  into 
something  approximating  to  an  international  govern- 
ment and  international  state.    Undoubtedly  the  expe- 
rience of  the  world  in  the  creation  of  such  huge  politi- 
cal units  as  the  United  States,  Canada,  Germany,  and 
Australia  by  the  process  of  federation  may  aid  in  cre- 
ating a  still  more  imposing  structure  in  the  "Parlia- 
ment  of  man  and  federation  of  the  World." 

READINGS  SUGG'^TED 

Lawrence,  T.  J.,  Principles  of  International  Law  (1898),  part  i 
chaps.  i-T. 

Reinsch,  P.  S.,  World  Polities  (1900),  chap.  i. 
Machiavelli,  N.,  The  Prince  (1513). 

FURTHER  AUTHORITIES 
Walker,  T.  A.,  History  of  the  Law  of  Nations,  vol.  i  (1899). 
Halleck,  H.  W.,  International  Law  (1861). 
Maine,  Sir  H.,  International  Law  (4th  edition,  1879). 
Bryce,  J.,  Holy  Roman  Empire  (8th  edition,  1883). 
Dunning,  W.  A.,  History  of  Political  Theories  Ancient  and  Me- 
dieval (1902). 
Grotius,  De  Jure  Belli  ac  Pacis  (1625). 
Ritchie,  D.  G.,  Natural  Rights  (1895). 


RELATION   OP  STATES  TO  ONE  ANOTHER 
Au.tin,  J    Lecture,  on  Juruprudence  (4th  edition,  1879). 
Jelhnek,  G.,  Das  Recht  des  Modernen  Staates  (1900) 
Dyer,  L.,  Machiavelli  and  the  Modern  State  (1904). 
WooUey,  T.,  America'g  Foreign  Policy  (1898). 


109& 


if 

w 

\  '- 

fl 

1 

i' 

■ 

■  ( 

:Ml 

CHAPTER  VII 

THE  FORM  OF  THE  STATE 

1.  The  Oassification  of  States  iiccordinff  to  their  Form ;  Aristotle's 
Divisions.  —  2.  Later  Classifications ;  Montesquieu,  Rousseau,  Blunt- 
schli,  etc. —  i.  Practical  Classification  of  Existing  States.  —  4.  The 
Constitution;  Written  and  Unwritten  Constitutions.  —  5.  Origin  of 
Written  Constitutions.  —  0.  Tlie  Distinction  between  States  with 
Written  and  those  with  Unwritten  Constitutions  an  Illusorj  Basis 
cf  Division.  —  7.   Scope  of  the  Constitution. — .H.   Amendment. 

L  The  Classification  of  States  according  to 
their  Form;  Aristotle's  Divisions.  Although  all 
states  must  possess  the  essential  requisites  of  territory, 
population,  unity,  and  sovereign  organization,  they  nev- 
ertheless differ  widely  in  respect  to  the  extent  of  their 
territory,  the  number  of  their  population,  and  the  pecu- 
liar  nature  of  their  organization.  It  is  natural,  therefore, 
to  attempt  to  group  them  under  some  system  of  or- 
derly classification  ;  indeed,  from  the  time  of  Aristotle 
onwards,  almost  all  writers  on  Political  Science  have 
indicated  some  such  classification.  To  subdivide  states 
according  to  the  extent  of  their  territory,  for  instance, 
into  classes  each  containing  so  many  thousand  squaio 
miles,  would  obviously  be  of  very  little  significance ;  to 
divide  them  according  to  population  would  be  equally 
easy  and  valueless.  The  evident  basis  of  classifica- 
tion is  that  of  the  organization  of  the  state ;  in  other 
words,  states  are  divided  according  to  the  structure 
of  their  governments.  Some  writers  have  held  that  we 
ought  not  to  speak  of  a  classification  of  states,  since 


THE  FORM  OF  THE  STATE  m 

all  are  identical  in  their  essential  attributes.  They  pre- 
fer  to  classify  instead  the  different  "  forms  of  govern- 
ment "  seen  in  the  state.  The  objection  does  not  seem 
well  taken.  The  differences  in  structure  of  government 
constitute  the  basis  of  classification,  but  we  may  on 
that  basis  either  speak  of  the  various  '^  forms  of  gov- 
ernment  "  or  "  forms  of  the  state."  » 

The  starting-point  for  all  later  discussion  is  found 
m  the  celebrated  classification  given  by  Aristotle  in 
his  "Politics."  He  divides  the  forms  of  government  ac 
cordmg  to  the  number  of  persons  in  whom  the  con- 
trollmg  power  is  vested.    Where  the  power  is  vested 
m  a  smgle   person   the  government   is  a  monarchy. 
Power  vested  in  the  hands  of  a  few  constitutes  an 
aristocracy.   Where  the  general  body  of  the  citizens 
rule,  we  have  a  polity.    Tims  far  the  classification  had 
already  been  indicated   by  Herodotus,  but   Aristotle 
proceeds  further  in  distinguishing  between  what  he 
calls  the  "normal "  and  the  "perverted  "  forms  of  the 
state.    The  normal  states  are  those  which  aim  at  the 
good  of  the  community  as  a  whole ;  the  perverted  forms 
are  those  which  exist  for  the  benefit  of  the  ruler  or  the 
ruling  class.   The  terms  mentioned  above  are  reserved 
for  the  first  class;  thus  a  monarchy  is  a  government 
by  a  king  for  the  good  of  the  whole  community,  while 
an  aristocracy  or  a  polity  is  a  government  by  the  en- 
lightened few  or  by  the  citizens  at  large  for  the  same 
end.   Of  the  perverted  forms  a  tyranny  means  the  gov- 

»  "  It  need  not  be  said  that  there  can  be  no  such  thing  as  a  classifi- 
cafon  of  states.  In  essence  they  are  all  alike, -each  and  all  bein-- 
distiuguished  by  the  same  sovereign  attributes."  W.  W.  WiUouchLv 
The  Nature  of  the  Slate,  cli&p.  xiii. 


112 


THE  NATURE  OF  THE  STATE 


'V^ 


ernment  by  a  tyrant  for  his  own  ends,  an  o\i^r\-v  the 
government  of  the  minority  in  their  own  interest,  while 
a  democracy  signifies  the  selfish  government  of  the 
"mob."  It  is  to  be  observed  that  in  translating  Ari«- 
totle's  terminology  literally,  the  word  democracy  is 
shifted  out  of  its  modern  moaning  and  becomes  a  term 
of  opprobrium ;  some  writers  have  therefore  prefeired 
to  avoid  a  literal  translation  and  to  use  "  democracy  " 
for  the  normal  or  beneficent  form,  and  to  substitute 
"  ochlocracy  "  to  mean  mob-rule. 

The  classification  thus  offered  was  intended  by  Aris- 
totle to  bear  a  peculiar  significance  in  that  it  typified 
not  only  the  divisions  of  governments,  but  also  indicated 
a  series  of  forms,  representing  what  might  be  coiisidered 
the  natural  evolution  of  government.  An  original  king- 
ship was  presumed  to  change  into  an  aristocracy  and 
then  through  successive  stages  of  oligarchy  and  tyranny 
into  democracy. "  The  first  governments,"  says  Aristotle,' 
"  were  kingships,  probably  for  this  reason,  because  of 
old  when  cities  were  small,  men  of  eminent  virtue  were 
few.   They  were  made  kings  because  they  were  bene- 
factors, and  benefits  can  only  be  bestowed  by  good  men. 
But  when  many  persons  equal  in  merit  arose,  no  longer 
enduring  the  preeminence  of  one,  they  desired  to  have 
a  commonwealth  and  set  up  a  constitution.   The  ruling 
class  soon  deteriorated  and  enriched  themselves  out  of 
the  public  treasury ;  riches  became  the  path  to  honour, 
and  so  oligarchies  naturally  grew  up.  These  passed  into 
tyrannies,  and  tyrannies  into  democracies:  for  love 
of  gain  in  the  ruling  classes  was  always  tending  to 
diminish  their  number,  and  so  to  strengthen  the  masses, 

•  Aristotle,  Politics,  ii,  chap.  xv. 


THE  FORM  OF  THE  STATE  113 

Who  in  the  end  set  upon  their  mastew  and  established 
democracies." 

Some  writers  in  their  analysis  of  the  Aristotelian 
classification  have  put  forward  as  the  "  natural "  order  of 
succession,  — monarchy,  tyranny,  aristocracy,  oligarchy 
polity,  and  lastly  democracy.  The  last  in  its  turn  may 
again  change  into  monarchy  and  hence  form  a  recur- 
rmg  cycle.'  The  process  may  be  explained  in  detail 
thus : — 

Starting  for  instance  at  a  given  point  in  th^   3ycle, 
we  find  a  government  in  existence  as  a  hereditary 
monarchy.   With  the  degeneration  of  the  character  and 
aims  of  the  successive  monarchs,  it  passes  mto  a  tyranny, 
and  IS  no  longer  directed  towards  the  public  good.  The 
united  efforts  of  the  more  powerful  magnates  of  the 
community  overthrow  the  monarch  and  set  up  an  aris- 
tocratic government.   This  again  degenerates,  loses  the 
pubhc  spirit  which  at  first  inspired  it,  and  lapses  into 
an  oligarchy.    Against  this  regime  the  citizens  as  a 
whole   break   into  successful   revolt   and   establish  a 
"  polity,"  or  in  modern  terminology  a  democracy.  Pushed 
to  an  extreme  the  democracy  is  converted  into  the  op. 
pression  of  the  rich  by  the  masses,  and  thus  becomes 
an  ochlocracy  (Aristotle's  democracy).   The  intolerable 
confusion  that  results  is  brought  to  an  end   by  the 
emergence  of  an  all-powerful  warrior-statesman  wlio 
establishes  himself  as  a  king.   Thus  the  cycle  has  run 
its  course  and  begins  again. 

»  This  is  the  interpretation  given  to  Aristotle's  theory  by  Wood- 
row  Wilson  (The  Stale,  chap.  xiii.  §§  l:50.-5-i;Jt.7).  It  i.,  interesting  in 
t*u.  connention  to  consider  Pl.,t«V  discussiuu  of  the  san.e  Hul.ject.  and 
Aristotle  s  criticism  of  Plato's  view.  See  Plato,  Eepublic,  viii,  §  545; 
and  Aristotle,  rolitics,  v,  chap.  xii. 


■n 


114  THE  NATURE  OF  THE  STATE 

The  theory  of  political  change  laid  down  by  Aris- 
totle  appears,  to  a  large  degree,  corroborated  by  the 
history  of  the  Greek  city  states  in  the  centuries  pre- 
ceding  the  PeloiK.nne8ian  War;«  indeed  it  was  as  an 
interi)retation  of  their  recurrent  experience  that  Aris- 
totle, who  was  essentially  an  inductive  and  practical 
writer,  offered   this   view  of    political   permutations, 
ii-ven  in  recent  history  examples  are  found  of  a  more 
or  less  complete  political  progression  of  this  sort.   The 
French  despotic  monarchy  of  the  eighteenth  century 
was  overthrown  by  the  revolutionary  movement  (1789- 
92),  which   in   its   inception   was  largely  under  the 
guidance  of  the  enlightened  minority,  and  whose  initial 
stages  might  therefore  be  looked  upon  as  the  overthrow 
of  despotism  >>y  aristocracy.'  In  the  second  phase  of 
the  revolution  the  aristocracy,  as  represented  by  the 
property.holding  voters  of   the  constitution  of  1791 
(an  oligarchy,  in  the  minds  of  the  Jacobin  extremists) 
were  overthrown,  and  the  republic  established,  resting 
theoretically  on  universal  suffrage  and  complete  demo- 
cracy.  The  turbulent  anarchy  into  which  this  demo- 
cratic regime  degenerated  (1793-99)  was  brought  to 
an  end  by  the  emergence  of  a  military  monarch  hi  the 
person  of  Napoleon  Bonaparte.   The  links  of  the  pro- 
gression are  not  precisely  complete,  but  yet  offer  an 
analogy  in  some   degree  corresponding  to  the  Aris- 
totelian cycle.   The  last-mentioned  phase,  the  suppres- 
sion of  anarcliic  disorder  by  the  establishment  of  a 

'  An  able  analysis  of  tlie  origin,  development,  and  decay  of  the  Greek 
city  state  is  given  by  War<l  Fowler,  The  City-State. 

■'  The  fact  that  the  constitution  of  17ftl  conferred  the  snffraire  only 
on  the  property-holders  lend,  color  to  tlu.  viaw.  See  Aulard.lw 
yolUtque  de  la  liiculvuion  Frai^aise. 


THE  FORM  OF  THE  STATE  115 

military  autocracy,  i.  one  th.t  ha.  .hown  itself  specially 
liable  to  recur.    Yet  when  all  i,  .aid,  it  cannot  he 
argued  that  the  Aristotelian  cycle  is  to  be  looked  upon 
as  a  necessary  or  even  as  a  normal  course  of  political 
change    Lven  Aristotle,  who  regarded  it  as  no   -al, 
shows  by  h,s  discussion  •  of  the  «.eans  of  preventing 
revo.ut.ons  that  he  did  not  consider  it  as  inevitable 
Least  of  all  does  it  hold  true  of  the  condition  of  the 
luodern  H.t.cal  state.   Nor  is  the  classification  of  state, 
into  monarchies,  aristocracies,  and  democracies  to  be 
looked  uiK,n  as  a  satisfactory  and  suircient  division  as 
applied  to  the  modern  world.   In  the  first  place,  the 
terms  monarchy  and  democracy  open  the  way  at  once 
to  great  confusion.   If  a  democracy  means,  as  Aristotle's 
polity  does,  a  system  in  which  the  political  power  lies 
»n  the  mass  of  the  people.  Great  Britain  is  to  be  classed 
as  such,  and  falls  into  the  same  category  as  the  United 
States,  notwithstanding  the  obvious  formal  difference 
between  these  two  governments.   If,  on  the  other  hand, 
having  regard  to  the  existe::ce  of  a  titular  sovereign. 
Great  Britain  is  classed  as  a  monarchy,  it  falls  into 
the  same  class  of  government  as  Russia  or  Persia,  an 
absurdity  equally  glaring.    It  is  thus  seen  tliat  the  Aris- 
to  elian  division  offers  no  adequate  treatment  of  consti- 
tutional or  limited  monarchies,  which  are  nevertheless 
as  prominent  as  any  existing  form  of  government.  The 
classification  is  inadequate,  too,  in  other  ways.    It  fails 
to  take  account  of  the  difference  between  a  federal  and 
a  non-federal  or  unitary  government,-...  distinction 
which,  as  we  shall  presently  see,  is  of  the  greatest  im- 
portance  m  connection  with  modern  states.    Nor  does 

1  Politict,  bk.  y. 


116 


THE  NATURE  OF  THE  STATE 


■« 


it  make  any  distinction  between  goTernmenta  accord* 
ing  to  the  differenves  of  the  coustitutiuDul  relation  of 
legislature  and  executive.  This  also,  as  we  shall  see,  is 
of  the  greatest  importance. 

9.  Later  ClaMiflcatlona ;  Monteaqnian,  Rooa- 
aaau,   Bluntachli,   etc.    Imperfect,  however,  as  the 
Aristotelian  formula  is,  it  was  nevertheless  accepted 
as  one  of  the  cardinal  tenets  of  {wlitieal  science.   Not 
until  quite  modern  times  do  we  find  it  subject  to  seri- 
ous modification   or  expansion.    Montesquieu,  whose 
"  Esprit  des  Lois  "  (1748)  will  fall  under  considera- 
tion in  the  succeeding  chapter,  proposed  a  division  into 
republican,  monarchial,  and  despotic  governments.   Re- 
publican government  was  that  "  in  which  the  people 
as  a  body  or  even  a  part  of  the  people  has  the  sove- 
reign power ;  monarchial,  that  in  which  a  single  per- 
son governs,  but  only  hy  fixed  and  catahlished  lawn  ; 
whereas  in  despotic  government  a  single  person  with- 
out any  law  or  rule,  conducts  everything  according  to 
his  will  and  caprice."  '    Rousseau  offers  a  division  of 
governments  into  monarchies,  aristocracies,  and  dc  n  j- 
oracies,  subdividing  aristocracies  into  natural,  elective, 
and  hereditary.   He  admits  also  the  existence  of  mixed 
forms  of  government,  as  in  the  anarchical   kingdom 
of  Poland.    Many  other  writers  of  the  eighteenth  and 
earlier  nineteenth   centuries   offer   variations   of   the 
classification  of  Aristotle,  all  of  which,  however,  are 
open  to  the  same  objection  of  inadequacy  as  applied  to 
the  complex  organization  of  modern  states.   Bluntschli 
presents  a  unique  addition  to  the  list  of  governments 
in  the  shape  of  theocracy,  a  normal  form  to  which  there 

'  Etprit  des  Lois,  bk.  ii,  chap.  i. 


THE  FORM  OF  THE  STATE  117 

corresponds  a  pervertwl  form, "  idoloorapy."  The  former 
name  is  applied  to  states  "in  whi.-h  no  human  author- 
ity  has  been  recognized,  in  wliid,  Mie  supreme  power 
has  been  attribute.1  eitlier  to  G.mi,  or  to  a  (twl  or  to 
some  other  suiwrhumau  being,  or  to  an  Idea.   The  men 
who  exercise  rule  are  not  regarded  as  its  jmsi'ssors, 
but  as  the  servants  and  viee-gnrents  of  an  unseen  ruler. 
Its   perversion   may   be   called    Idolocracy."    Such   a 
classification  seems  quite  fallacious.    For  even  grant- 
ing the  validity  of  this  fourth  class,  it  lies  crosawiHe 
of  the  other  three,  and  is  not  exclusive  of  them.   We 
might  have  a  theocracy  that  had  the  form  of  a  mon- 
archy, an  aristocracy,  or  a  democracy.   Other  writers 
have  attempted    more  elaborate  metho<ls  of  division, 
which  are  intended  to  account  for  all  the  various  his- 
torical forms  of  the  state.   Of  this  nature  is  the  classi- 
fication of  Von  xMohl  (a  German  publicist  of  the  earlier 
nineteenth  century) ;  he  distinguishes  patriarchal,  theo- 
cratic, despotic,  classic,  feudal,  and  constitutional  states. 
Very  little  examination  is  needed    to   see  tli.-it  such 
classes  overlap  each  other  in  all  directions;   indeed 
attempts  of  this  sort  to  effect  a  division  that  is  at  once 
logical  and  chronological,  run  the  danger  of  drifting 
into  mere  description. 

More  modern  writers '  undertake  a  division  of  states 
which  shall  take  account  not  merely  of  the  general 
location  of  supreme  legal  power,  but  also  of  the  salient 
features  of  the  organization  and  structure  of  the  gov- 
ernment. Indeed,  while  accepting  Aristotle's  division 
as  true  as  far  as  it  extends,  it  seems  necessary  in  classi- 

J  See    Gareia,    AUgemeines    Staatsrecht ;    and  Jellinek,   Mgemt  m 
ataaltlekre,  chap.  xx. 


118 


'  M;f  til 


is  1      '» 


THE  NATURE  OF  THE  STATE 

states  of  the  modern  world  to  take  account 
of  -.-It.-;     especial  features  of  organization  the  exist- 
eiiv-e  ot  which  introduces  a  fundamental  difference  be- 
tween forms  of  government.    Chief  amongst  these  is 
the  distinction  between  unitary  and   federal   govern- 
ments.    In  a  unitary  government  the  organs  of  local 
authority  (provincial  and  county  bodies,  etc.)  exist  by 
virtue  of  an  express  creation,  or  by  tacit  recognition 
from  the  central  government.   The  latter  has  power,  le- 
gaily,  to  terminate  their  existence  or  alter  their  form. 
The  governments  of  France,  Great  Britain,  and  Italy 
are  unitary.  The  governments  of  the  United  States  and 
Germany,  on  the  other  hand,  are  federal.   Here  both 
the  central  and    local  authorities  derive  their  power 
from  an  antecedent  source,  and  neither  is  legally  com- 
petent to  destroy  the  other.    A  further  distinction  is 
found  in  the  difference  between  what  is  called  parlia- 
mentary, responsible,  or  cabinet  government,  and  the 
form  known  as  non-responsible  or  non-parliamentary. 
In  the  former  the  executive  is  virtually  appointed  by, 
and  holds  office  during  the  pleasure  of,  the  legislative 
body.   This  is  the  case  in  England  and  in  France.    In 
the  latter  the  executive  is  not  appointed  by  the  legis- 
lature, and  cannot  be  dismissed  by  it.   Of  this  char- 
acter is  the  government  of  the  United  States,  of  the 
separate  states  of  tlie  Union,  Cuba,  etc. 

a  Practical  Classification  of  Existing  States. 
In  attenjpting  a  somewhat  elaborate  practical  classifi- 
cation of  states,  it  scen.s  advisable  to  make  no  attempt 
to  mclude  all  the  historic  forms  which  have  appeared 
in  the  evolution  of  the  state  (city  states,  feudal  mon- 
archies, etc.),  but  to  confine  ourselves  to  actually  exist- 


THE  FORM  OF  THE  STATE  ng 

ing  types.  It  is  better  also  to  leave  on  one  side  those 
communities  of  the  modern  world,  such  as  China,  whoso 
imperfect  organization  hanlly  admits  of  their  being 
called  states  in  the  st-ict  sc-.-ie.  In  dealing  with  his- 
toric and  iniperfect  foi  -os  of  the  staff  no  more  accurate 
classification  than  tht  ovigin;il  cat  .gory  of  Aristotle 
can  be  applied  without  ut-geucaliiig  into  meredescrip- 
tion.  It  is  well,  therefore,  to  take  the  primary  classifi- 
cation as  of  general  validity,  and  to  supplement  it  with 
a  more  exact  category  of  modern  states.  In  the  light 
of  what  has  been  said,  the  division  shown  in  the  table 
on  the  following  page  may  be  suggested. 

The  basis  of  division  in  this  plan  proceeds  in  the 
first  place  from  the  fundamental  distinction  between 
despotic  and  democratic  states.    In  the  former  the  su- 
preme legal  ijower  is  in  the  hands  of  one  person ;  in  a 
democratic  state  it  is  in  the  hands  of  the  majority  of 
the  peo])le,  or   their  representatives.   This  seems  the 
most  fundamental  of  all  distinctions  ;  it  corresponds  to 
the  complete  contrast  offered  by  the  legal  organization 
of  such  states  as  Russia,  Turkey,  and  Persia  on  the  one 
hand,  and  those  of  France,  the  United  Kingdom,  and  the 
United  States  on  the  other.    It  seems  unfortunate  to 
use   the  word   desjjotic  to  indicate   the  former  class, 
since  in  the  legal  sense  every  state  may  be  said  to  be 
despotic.   But  the  term  monarchical,  or  even  tyrannical, 
only  leads  to  worse  confusion,  and  ready-made  termi- 
nology is  seldom  felicitous.    As  a  second  grouping  we 
have  the  subdivision  of  democracies  into  limited  mon- 
archies (governments  in  which  the  nominal  headship 
of  a  personal  sovereign  is  preserved)  and  republics,  in 
which  the  chief  executive,  both  titular  and  real,  is  the 


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120 


THE  NATURE  OF  THE  STATE 


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THE   FORM  OF  THE  STATE 


in 


appointee  of  the  people.  For  evident  reasons  there  is 
no  similar  division  of  despotic  monarchies.  The  further 
divisions  between  unitary  and  federal  governments, 
and  between  responsible  and  non-responsible  forms, 
have  already  been  explained.  There  can  evidently  be 
no  federal  or  responsible  subdivisions  under  the  des- 
potic group. 

4.  The  Constitution;  VTritten  and  Unwritten 
Constitutions.  The  form  of  any  particular  state  is 
called  its  constitution.  In  America  it  is  natural  to  think 
of  the  word  "  constitution  "  as  indicating  a  written  doc- 
ument. But  in  the  wider  sense  of  the  term  it  refers 
to  the  fixed  fundamental  law  of  any  state,  whether 
expressed  in  a  written  constitution  or  otherwise.  The 
following  definition  is  offered  by  Professor  Woolsey :  • 
"The  collection  of  principles  according  to  which  the 
powers  of  the  government,  the  rights  of  the  governed, 
and  the  relations  between  the  two  are  adjusted  is  called 
a  constitution."  Compare  the  definition  of  the  distin- 
guished English  juH-  Mr.  E.  Dicey:  "All  rules 
which  directly  or  indii  -  Tect  the  distribution  or  the 

exercise  of  the  sovereigi  ,,.,A^er  in  the  state."  Of  these 
principles  or  rules,  some  may  exist  in  written  form  in  a 
constitutional  document,  but  others  may  be  of  equally 
binding  force  though  resting  for  their  sanction  only  on 
long-standing  custom.  This  is  seen  particularly  in  look- 
ing  at  the  constitution  of  England.  Some  of  the  most 
important  parts  of  it  are  ro"'*^ers,  not  of  statutory  en- 
actment, but  of  customary  usage ;  and  this  customary 
usage  is  to  be  regarded  sometimes  as  having  the  aspect 
of  law  enforceable  by  the  courts,  sometimes  merely 

*  Political  Science,  vol.  L 


122 


THE  NATURE  OF  THE  STATE 


l! 


1! 


as  an  understandiug  or  convention,  whose  observance 
is  only  guaranteed  by  the  force  of  tradition  and  of 
public  opinion.  The  cabinet  system,  for  example,  by 
which  the  ministers  of  the  executive  are  selected  with 
the  approval  of  the  majority  of  the  House  of  Commons 
from  among  the  niembers  of  the  t',>o  houses  of  Parlia- 
ment representing  a  particular  political  party  or  group 
of  parties,  is  the  central  feature  in  the  practical  oper- 
ation of  the  British  government ;  it  is  purely  a  matter 
of  convention,  not  of  law. 

Hungary  is  another  country  which  offers  an  example 
of  what  is  commonly  called  an  unwritten  constitution. 
The  relations  of  Hungary  to  Austria,  together  with 
which  it  forms  the  dual  monarchy  of  Austria-Hungary, 
are  indeed  based  upon  a  fundamental  statute  (December, 
1867)  passed  'n  like  terms  by  the  parliaments  of  the 
two  countries,  and  bearing  some  analogy  to  a  written 
constitution.  But  there  is  no  single  constitutional  docu- 
ment regulating,  or  nrrfessing  to  regulate,  the  internal 
government  of  the  Kmgdom  of  Hungary.  As  in  the 
case  of  England,  to  whose  constitutional  evolution  that 
of  Hungary  offers  an  interesting  parallel,  the  consti- 
tution rests  partly  on  immemorial  custom,  partly  on  a 
series  of  decrees  and  statutes,'  partly  on  conventional 
usages.  The  parliament  of  Hungary  and  the  county 
assemblies  have  existed  for  many  centuries,  and  their 

*  Of  these  the  principal  are  :  Golden  Bull  of  Andreas  II  (1222) ; 
the  Pacification  of  Vienna  (lOlM!) ;  Pragmatic  .Sanction  of  Charles  III 
(172.5);  Constitutional  Laws  of  1791,  1844,  1848,  and  1807.  Fromtbu 
original  Contract  of  Blood  (no  lonjfer  extant  but  dating  from  the  <^ -st 
conquest  of  tlie  country  and  securing  the  rights  of  the  nobles)  till  the 
present  time  about  fifty  constitutional  statutes  may  be  enumerated.  See 
Dareate,  F.  R.,  Lm  Constitutions  Modemes  (2d  edition,  1891),  voL  L 


THE  FORJI  OF  THE  STATE  123 

existence  is  not  based  on  a  fundamental  written  law. 
Of  the  decrees  referred  to,  the  Golden  Bull  of  Antlreas  II 
(A.  D.  1222)  —  restricting  the  power  of  the  king  in  favor 
of  the  privileges  of  the  barons,  and  calling  for  annual 
parliaments  —  suggests  the  Magna  Carta  of  King  John. 
It  has  been  supplemented  by  numerous  other  laws,  the 
most  important  provisions  of   which  were   definitely 
codified  in  statutes  of  1848  and  1867.  Any  of  the  pro- 
visions of  tuese  oan  legally  be  abolished  by  ordinary 
statutes.   It  would  seem  then  that  the  word  constitution, 
if  it  is  to  include  the  organization  of  such  countries  as 
England  and  Hungary,  must  be  used  in  a  wider  accep- 
tation than  its  usual  American  signification.   To  the 
examples  of  Great  Britain  and  Hungary  there  might 
of  course  be  added  the  despotic  states,  such  as  Russia 
and  Turkey,  whose  government  from  the  nature  of  the 
case  is  not  based  upon  a  written  constitution.   Theoret- 
ically one  could  conceive  of  a  despotic  monarchy  rest- 
ing on  a  written  constitution  ;  one  might  imagine  the 
social  contract  as  enunciated  by  Ilobbes,  operating  in 
the  form  of  a  written  constitution,  under  which  all  the 
subjects   surrendered  their  power  to  a  despotic  king. 
But  inasmuch  as,  in  this  instance,  the  power  of  the 
king  would  extend  to  the  alteration  or  abrogation  of 
the  constitution  itself,   the  latter   would   be   entirely 
nugatory  and  the  king's  real  tenure  of  power  would 
rest  in  reality  on  the  continuance  of  the  custom  of 
submission. 

5.  Origin  of  Written  Constitutions.  But  among 
the  organized  states  of  the  civilized  world  the  number 
of  those  which  have  no  written  constitution  professing 
to  regulate  their  internal  structure  is  only  a  very  small 


124 


THE  NATURE  OF  THE  STATE 


li'J 


I 


^1 


i 


minority.   Within  the  last  century  and  a  half  most  of 
the  great  states   have  adopted  written   constitutions. 
The  American  colonies,  in  converting  themselves  into 
states,  led  the  way.   Written  constitutions  were  adopted 
in  the  year  1776  by  New  Hampshire,  Virginia,  South 
Carolina,  New  Jersey,  Delaware,  Pennsylvania,  Mary- 
land, and  North  Carolina ;  in  the  following  year  by 
Georgia  and  New  York ;  and  by  Massachusetts  in  1780. 
Connecticut  and  Rhode  Island  converted  their  royal 
charters  into  constitutions  by  putting  the  name  of  the 
people  in  the  place  of  that  of  the  king.     France,  at 
the  commencement  of   the   Revolution,   framed   and 
adopted  (^1791)  a  written  constitution  which,  although 
soon  set  aside  in  favor  of   others  equally  ephemeral 
(1793,  1795,  1799),  established  a  historic  precedent. 
Eaxjh  of  the   successive    Freuch   governments  of  the 
nineteenth  century  has  adopted  a  written  constitution, 
—  the  Bourbon  government  of  the  Restoration  prefer- 
ring, however,  to  avoid  tlie  word  "  constitution  "  and  to 
substitute  for  it  the  term  "  charter,"  which  seemed  to 
have  less  flavor  of  popular  sovereignty.   The  present 
government  in  France,  —  the  third  republic,  —  though 
it  has  no  single  document  callecJ  a  constitution,  has, 
nevertheless,  a  code  of  "  constitutional  laws,"  with  a 
special  method  of  revision.    In  the  Napoleonic  era  a 
number  of   written   constitutions   were   issued  under 
French  influence  to  the  tributary  Italian  states.    Dur- 
ing the  same  time  written  constitutions  were  declared 
in  Spain  both  by  the  Bonapartists,  recognizing  King 
Joseph  (1808),  and  by  the  partisans  of  the  Bourbon 
Ferdinand  VII  (1812).   Neither  of  these  proved  per- 
manent ;  but  Spain  is  at  present  under  a  written  con- 


THE  FORM  OF  THE  STATE 


125 


stitution  presented  by  the  government  to  a  convention, 
which  ratified  it  in  187G.  During  the  European  rising 
against  Napoleon  (1813,  1814)  written  constitutions 
were  promised  by  Prussia  and  by  several  of  the  states 
of  Germany ;  after  the  war  they  were  actually  granted 
by  Bavaria  (1818)  and  by  Wurtteuiberg  (1819).  The 
great  revolution  of  1 848  precipitated  a  shower  of  writ- 
ten constitutions  all  over  central  Europe.  Though 
nearly  all  of  them  were  canceled  in  the  ensuing  mon- 
archial  reaction,  that  of  Sardinia  (the  "  Fundamental 
Statute  "  of  1848)  has  remained  in  revised  form  as  the 
constitution  of  the  present  kingdom  of  Italy.  The  king 
of  Prussia  issued  in  1850  a  constitution  prepared  by 
the  crown  and  accepted  by  a  legislative  body  of  a  reac- 
tionary character,  which  has  since,  in  theory  at  least, 
served  as  tlie  basis  of  the  Prussian  government.  Aus- 
tria, in  18G7  (defeated  in  the  war  with  Prussia  and 
Italy,  and  fearing  a  disintegration  of  her  heteroge- 
neous provinces),  adopted  a  set  of  fundamental  laws 
closely  analogous  to  a  written  constitution.  At  the 
present  time,  then,  with  the  exception  of  England, 
Hungary,  and  the  absolute  monarchies,  the  chief  Euro- 
pean states  have  written  constitutions.  The  same  is 
true  of  the  republics  of  Central  and  South  America, 
all  of  which  have  written  constitutions,  serving  at  any 
rate  as  the  nominal  basis  of  their  government. 

The  precedent  having  been  once  successfully  set  in 
America  in  the  eighteenth  century,  its  extension  has 
been  largely  a  matter  of  imitation  and  adaptation.  It 
is  interesting,  however,  to  observe  the  manner  in  which 
the  institution  of  witten  constitutions  came  about  in 
the  United  States.    In  a  certain  sense  the  written  con. 


Shi 


12G 


THE  NATURE  OF  THE  STATE 


stitutions  of  the  American  states  may  be  looked  upon 
as  evolved  out  of  the  charters  granted  by  the  sove- 
reigns  of  England  to  trading  companies,  and  conferring 
upon  them  a  corporate  personality,  and,  in  most  in- 
stances,  commercial  privileges  or  monopolies.    These 
charters  themselves  were  closely  analogous  to  the  medi- 
aeval  charters  of  privileges  given  to  towns,  merchant 
guilds,  or  religious    orders.     Edward   IV,   in   1463, 
granted  a  charter  to  the  merchant  adventurers  trading 
with  Flanders.   Queen  Elizabeth  conferred  a  charter 
(1579)  upon   the   Eastland  company  trading  in  the 
Baltic,  and  granted  another  in  1599  to  the  East  India 
Company.   Under  James  I  ( 1G09)  a  charter  was  granted 
to  the  "Treasurer  and  Company  of  Adventurers  and 
Planters  of  the  city  of  London  for  the  first «  colony  in 
Virginia."   Moat  important  of  all  is  the  charter  issued 
by  Charles  I  (1629)  to  the  "Governor  and  Company 
of   Massachusetts   Bay."   The   Massachusetts  charter 
not  only  incorporates  a  "  trading  company  with  power 
to  implead  or  to  be  impleaded,  etc.,"  but  also  makes 
provision  for  a  frame  of  government  consisting  of  a 
governor,  deputy-governor,   and    eighteen    assistants, 
and  calls  for  the  holding  of  a  "greate  and  general 
courte  "  of  the  company  four  times  a  year.   The  emi- 
gration of  the  company  as  an  entirety  to  America  (a 
proct -ding  not  contemplated  by  the  government  at  the 
granting  of  the  charter)   converted  their  corporation 
into  a  political  rather  than  a  commercial  body.   Though 
this  charter  was  canceled  in  1684,  it  was  replaced  by 

»  This  U  the  second  Vii-inia  charter.  The  first  was  panted  in  lOOft 
The  word  "first"  is  used  to  distingnish  them  from  the  Plymouth 
Company.   See  B.  Poore,  Charters  and  Constitutions,  vol.  ii 


THE  FORM  OF  THE  STATE 


12? 


another  one  (1691)  which  conceded  less  independence, 
indeed,  to  the  colony,  but  constituted  a  more  purely 
political  instrument.  Similar  charters  with  privilt'ges 
of  government  were  granted  to  various  other  American 
colonies  during  the  period  of  settlement,  though  many 
of  them  were  witiidrawn  later.  At  the  time  of  the 
Revolution  colonial  charters  existed  in  Massachusetts, 
Connecticut,  and  Rhode  Island. 

But  although  it  is  nocet.sary  to  recognize  the  import- 
ant part  played  by  trading  charters  in  the  evolution 
of  written  constitutions,  there  are  other  contributory 
factors  which  must  not  be  left  out  of  sight.   The  insti- 
tution of  compacts  or  joint  agreements  for  self-govern- 
ment among  the  people  themselves  played  an  important 
part.    Of  these  compacts  or  "  plantation  covenants," 
the  history  of  the  settlement  of  New  England  in  the 
seventeenth  century    offers   several   examples.    They 
were  occasioned  in  part  by  the  isolation  in  which  the 
colonists  found  themselves,  being  cut  off  from  the  direct 
action  of  the  sovereign  government  to  which  they  ac- 
knowledged allegiance  ;  they  were  also  inspired  by  the 
ideas  on  religious  organization  and  government  domi- 
nant  among  a  large  section  of  the  colonists.    The  latter, 
being  "Independents"  ■  ^  matters  of  church  govern- 
ance, had  already  the  custom  of  drawing  up  a  "  church 
covenant,"  which,  being  accredited  by  the  members  of 
the  congregation,  became  as  it  were  the  constitution 
of  their  spiritual  government.    The  most  notable  of  the 
colonial  compacts  is  the  Mayflower  Covenant,  mentioned 
in  a  preceding  chapter.    A  particular  importance  at- 
taches to  documents  framed  in  1639,  and  named  the 
"Fundamental  Orders  of  Connecticut,"  which  are  prao. 


Ipllf  ^ 


llJKil 


% 


128  THE  NATURE  OF  THE  STATE 

tically  a  political  constitution  adopted  by  the  towns  of 
Windsor,  Hartford,  and  Wethersfield,  which  thus  com- 
bined  to  form  the  government  of  Connecticut.   On  this 
was  based  the  later  royal  charter  of  16G2,  which,  as  h^s 
been  seen  already,  was  transferred  into  a  state  consti- 
tution.    During  the  great  rebellion  of  the  seventeenth 
century  in  England,  the  supremacy  of  the  Puritans  pro- 
duced in  lo47  the  famous  "  Agreement  of  the  People," 
intended  to  be  a  fundamental  written  law  superior  to  the 
power  of  parliament,  and  to  be  ratified  by  all  the  nation. 
A  little  later  (1653)  the  rdgime  of  the  Protectorate 
was  consolidated  in  the  "  Instrument  of  Government," 
drawn  up  by  a  council  of  Cromwell's  officers.    This 
latter  was  a  written  constitution.    But  the  restoration  of 
the  monarchy,  theoretically  on  its  old  basis,  broke  up 
the  thread  of  constitutional  development  and  left  it  to 
be  brought  to  a  culmination  by  the  At-erican  colonists 
of  the  next  centur 

6.  The  Distincuon  between  States  with  Writ- 
ten and  those  with  Unwritten  Constitntions  an 
niusory  Basis  of  Division.   From  what  has  been  said 
one  might  reasonably  expect  that  the  cl-ssification  of 
governments  ought   to  have  included  the  distinction' 
between  those  that  have  a  written  constitution  and  those 
that  have  an  unwritten.    But  such  a  distinction,  self 
evident  as  it  appears  at  first,  is  in  reality  illusory  and 
unsatisfactory.    In  the  first  place  no  constitution  is 
wholly  an  unwrif^en  one.  Thus  in  the  case  of  the  United 
Kingdom  certain  parts  of  the  constitution  undoubtedly 
consist  of  written  documents;  the  Magna  Cf.rta,  the 
Bill  of  Rights  (of  1689),  the  Act  of  Settlement  (1701), 
and  the  statutes  of  1832, 1867, 1884,  and  1885,  regu- 


1 


THE  FORM  OF  THE  STATE 


120 


lating  the  right  to  vote  and  t'le  representation  of  tha 
people,  are  evident   examples.    Nor  does  a  so-called 
written  constitution  of  necessitv,  or  even  usually,  contain 
the  whole  of  the  fundamental  law  of  the  country  to 
which  it  applies.    Any  constitution  is  soon  found  to  be- 
come surrounded  in  its  operation  with  a  growth  of  pre. 
cedents  and  customary  usages  which  presently  obtain 
what  is  practically  a  binding  force,  and  which  become 
in  time  a  part  of  the  constitution  in  the  same  sense.  The 
most  familiar  example  is  seen  in  the  case  of  the  presi- 
dential  office  in  the  United  States,  a  third  term  being 
forbidden  by  precedent,  though  not  repugnant  to  the 
written  constitution  itself.   A  good  illustration  of  the 
same  thing  is  seen  in  the  government  of  Italy  :   the 
"  Fundamental  Statute  "  does  not  prescribe  the  neces. 
sity  of  a  cabinet  system,  —  of  ministers  dependent  as 
in  England  on  the  approval  of  a  parliamentary  major- 
ity,—but  the   precedent  set  by  Victor  Emmanuel  I 
has  been  consistently  followed,  and  now  the  system  '  ig 
looked  upon  as  a  part  of  the  constitution  of  the  king- 
dom of  Italy. 

There  are  further  reasons  of  still  greater  cogency  for 
rt  ag  to  group  together  the  countries  with  paper 
constitutions  as  forming  a  class.  It  is  commonly  con- 
sidered that  a  written  constitution  stands  as  a  barrier 
against  the  arbitrary  action  of  the  government,  the 
supposition  being  that  since  the  powers  of  the  -overn- 
meat  are  limited  and  defined  by  the  constitutional  in- 
strument,  any  action  of  the  government  outside  of  its 

'  For  the  special  fpatures  of  cabinet  guvimmt-nt  in  Iraly.  see 
LoweU,  A.  L.,  Government  and  Parties  in  Continental  Europe,\o\.  L 
pp.  151-154. 


130 


THE  NATUR      OF  THE  STATE 


U^ 


Hi 


f  ■■■    L. 


p 


legal  province  is  void.   Such  is  of  course  the  case  with 
the  Constitution  of  tho  I'nited  States.    But  it  is  a  con- 
fusion  of  thought  to  supiMjse  that  this  is  a  necessary 
consetpience  of  tlie  existence  of  a  written  constitution. 
The  existence  of  such  restrictions  on  the  actions  of  the 
government  does  not  follow  from  the  mere  fa<!t  of  there 
being  a  written  ijonstitution,  but  dei)end8  on  the  ques- 
tion  whether  or  not  the  provisions  of  the  constitution 
are  alterable  by  the  ordinary  legislative  procedure  of 
the  government.    In  the  United  States  this  is  of  course 
not  possible ;  Congress  has  no  power  to  widen  its  own 
jurisdiction.  But  one  can  imagine  a  written  constitution, 
alterable  by  the  ordinary  method  of  legislative  enact- 
ment.   This  is  precisely  the  case  with  the  constitution 
(the  Fundamental  StJitute)  of  the  kingdom  of  Italy; 
there  is  no  part  of  it  that  cannot  legally  be  altered  by 
an  act  of  the  Italian  parliament.    In  spite  of  the  exist- 
ence in  the  one  country  of  a  written  constitution,  and 
its  absence  in  the  other,  the  fundamental  law  of  Italy 
stands  on  the  same  footing  as  that  of  the  United  King- 
dom.    It  is  the  force  of  custom  and  public  opinion,  not 
any  legal  check,  that  limits  the  power  of  t\u    existing 
governmental  body.    It  seems,  therefore,  that  to  class 
Italy  and  the  United  States  together,  and  contrast  the 
two  of  them  with  the  United  Kingdom,  is  to  proceeil 
from  a  purely  artificial  point  of  view.   The  division  of 
governments  into  those  that  have  and  those  that  have 
not  a  paper  constitution,  is  quite  misleading. 

Even  apart  from  the  question  of  amendment  or  alter- 
ation  of  the  constitution,  a  feature  of  essential  import- 
ance is  the  validity  or  enforceability  of  the  constitutional 
restrictions.   In  the  case  of  the  United  States,  a  con- 


THE  FORM  OF  THE  STATE  131 

stitutional  limitation  is  rendered  valid  by  the  peculiar 
power  entrusted  to  the  Aaierican  courts.    An  act  i)f 
Congress  which  goes  beyond  the  constitutional  lowers 
of  that  body  becomes  in.»perative  by  the  decision  of 
the  judiciary,  to  which  the  executive  and   legislative 
branches  of  the  government  defer.    In  this  arrange- 
ment, which  will  be  discussed   more  fully  in  a  later 
chapter,  lies  the  true  guarantee  of  the  American  Con- 
stitution,  and  it  is  this  fact,  and  not  the  mere  fact  that 
the  Constitution  is  a  written  one,  which  offers  su.h 
a  special  safeguard  to  public  lilwrty.    But   this   is  a 
feature  quite  peculiar  to  the  American  system.    The 
courts  of  Europe  have  no  such  function,  and  the  in- 
dividual has  no  such  guarance.    The  example  of  the 
Prussian  constitution  is  a  case  in  point.   IJctween  the 
years  18G0  and  18G5  a  struggle  was  carrie.l  on  between 
the  king  of  Prussia  (acting  under  the  advice  of  Bis- 
marck and  anxious  to  increase  the  expenditure  on  the 
army)  and  tlie  House  of  Representatives  elected  under 
the  constitution.    The  constitution   nominally  places 
the  control  of  finance  in  the  hands  of  the  parliament 
declaring  that  "  taxes  and  dues  for  the  treasury  of  the' 
state  can  be  levied  only  as  they  are  set  down  in  the 
budget  or  ordained  by  special  laws  "  (art.  100,  consti- 
tution of  1850).    The  king,  finding  it  impossible  even 
after  recourse  to  a  dissolution,  to  bend  the  House  of 
Representatives  to  his  will,  passed  his  budget  through 
the  House  of  Peers,  and  collected  the  taxes  without  any 
sanction  from  the  lower  house.   This  was  of  course  a 
gross  violation  of  the  constitutional  provisions.   Under 
the  American  system  any  individual  citizen  thus  taxed 
could  have  appealed  to  the  courts  for  protection.   But 


lu 


U 


132 


THE  NATURE  OF  THE  STATE 


I 


the  Prussian  system  does  not  permit  of  any  such  re- 
course, and  although  the  House  of  Representatives  made 
formal  protest,  it  had  no  power  to  stop  the  illegal  pro- 
ceedings of  the  executive.  For  the  reasons  thus  cited  — 
that  no  constitution  is  wholly  unwritten  or  wholly  writ- 
ten, that  even  in  a  written  one  the  vital  part  of  the 
matter  lies  in  the  process  of  revision,  and  in  the  relation 
of  the  courts  to  the  constitution  —  it  is  well  not  to  attach 
too  much  importance  to  the  formal  distinction  between 
paper  constitutions  and  constitutions  relying  on  custom. 
7.  Scope  of  the  Constitution.  In  the  next  place 
there  is  to  be  considered  the  scope  and  extent  of  what 
is  properly  to  be  called  the  constitution  of  a  state.  To 
harmonize  with  the  definition  given  above,  it  should 
contain  those  principles  according  to  which  the  powers 
of  the  government,  the  rights  of  the  governed,  and  the 
relation  between  the  two  are  adjusted.  This  is  not  the 
case  with  all  written  constitutions ;  many  of  them  con- 
tain regulations  too  minute  and  of  too  little  import- 
ance to  be  classed  as  true  fundamental  law.  This  feature 
is  particularly  noticeable  in  the  present  constitutions 
of  the  states  of  the  Union.  Their  provisions  cover  not 
only  the  fundamental  regulations  of  the  structure  of 
the  government,  but  a  great  many  other  things  as  well. 
Thus  the  constitution  recently  adopted  in  Alabama 
(1901)  contains  specific  provisions  in  reference  to  the 
procedure  of  the  legislature,  the  enumeration  of  thirty- 
one  different  classes  of  private  and  special  legislation 
prohibited  to  the  legislature,  and  refers  to  a  number  of 
miscellaneous  matters  such  as  banking,  railroad  freight 
rates  and  passes,  and  the  Alabama  Polytechnic  Insti- 
tute. This  is  typical  of  modem  American  constitutions. 


THE  FORM  OF  THE  STATE  133 

which  have  tended  constantly  to  become  more  and  more 
lengthy  and  explicit.  The  New  Hampshire  constitution 
of  1776  contains  600  words,  the  constitution  of  Mis- 
souri of  1875  about  26,000,  and  the  present  constitu- 
tion of  Alabama  about  as  many.   The  reason  for  this 
lies  in  the  alteration  of  public  opinion  in  reference  to 
legislative  bodies  in  general.   A  hundred  years  ago  the 
legislature  was  the  object  of  unlimited  popular  confi- 
dence  and  seemed  to  embody  in  itself  the  sovereign 
power  of  the  people.    The  experience  of  a  hundred 
years  has  shown  the  possibility  of  corruption  in  the 
legislature  itself,  and  popular  distrust  has  led  to  the 
attempt  to  safeguard  the  people  from  venality  and  cor- 
ruption on  the  part  of  their  representatives.   The  re- 
sult is  that  in  a  certain  sense  many  of  the  provisions 
of  American  constitutions  are  not  of  the  nature  of 
fundamental  law. 

It  thus  becomes  a  little  difficult  to  say  with  accuracy 
just  what  the  words  "  constitutional  law  "  should  mean. 
If  the  phrase  is  taken  in  a  purely  literal  sense  to  mean 
the  law  contained  in  a  written  constitution,  we  omit 
the  accompanying  customary  usages  and  judicial  inter- 
pretation, and  include  much  that  is  in  the  constitution 
but  is  not  fundamental.    For  example  the  article  (No. 
51)  of  the  constitution  of  Switzerland  which  declares 
that  the  order  of  Jesiiits  is   not  allowed  in  Switzer- 
land  is  only  constitutional  law  in  the  sense  that  it  is  in 
the  constitution.   In  the  case  of  a  country  with  a  cus- 
tomary constitution,  "constitutional   law"  means  aU 
such  customs,  common  law,  and  statutes  as  are  of  a 
fundamental  nature.   This  is  of  course  a  definition  in  a 
circle,  yet  the  sense  conveyed  is  fairly  obvious.   In  the 


IM 


THE  NATURE  OF  THE  STATE 


s 


United  Kingdom,  for  example,  the  acts  of  Parliament 
of  1832, 1867, 1884,  and  1885,  regulating  the  represen- 
tation of  the  people,  are  constitutional  law ;  the  factory 
act  of  1901,  though  passed  in  the  same  way  by  the 
same  authority,  is  not. 

8.  Amendment.  Something  must  be  said  in  con- 
elusion  in  regard  to  the  alteration  or  amendment  of  a 
constitution.  In  such  countries  as  England  and  Hun- 
gary, revision  or  alteration  is  effected  by  the  ordinary 
legislative  process.  The  same  is  true  of  certain  coun- 
tries with  written  constitutions,  such  as  Italy.  Some 
written  constitutions  make  no  explicit  provisions  for 
revision,  as  that  of  Wiirttemberg  (1819)  and  the 
French  "  charters  "  of  1814, 1815,  and  1830.  In  these 
cases  it  is  to  be  presumed  that  the  ordinary  legislative 
process  includes  the  revisionary  power.  But  in  the 
great  mass  of  written  constitutions  a  special  method  of 
revision  is  prescribed,  in  all  cases  necessitating  a  more 
deliberate  and  difficult  process  than  the  passage  of  an 
ordinary  law.  The  German  federal  constitution  (art. 
78)  allows  revision  by  ordinary  legislative  proceas,  with 
the  provision  that  fourteen  votes  in  the  upper  house 
are  sufficient  to  defeat  the  amendment ;  inasmuch  as 
Prussia  has  seventeen  votes,  the  article  precludes  any 
revision  without  the  consent  of  the  king  of  Prussia,  in 
other  words,  of  the  German  emperor.  Various  devices 
are  adopted  in  other  constitutions,  —  the  election  of  a 
special  parliament  on  the  issue  of  the  revisiou  (as  in 
Spain),  the  reiteration  of  the  demand  for  revision  by 
successive  legislatures  (French  constitution  of  1791), 
etc.  The  systems  at  present  in  force  in  France  and 
the  United  States  present  contrasted  extremes  of  aim* 


THE  FORM  OF  THE  STATE  135 

pHcity  and  difficulty  of  revision.   I„  France  a  revision 
can  be  adopted  in  a  joint  session  of  the  Chamber  of 
Deputies  and  the  Senate,  a  provision  originally  framed 
m  the  hope  of  easily  converting  the  republic  into  a 
monarchy.   The  natural  objection  to  such  a  simple  pro- 
cess  of  amendment  is  the  absence  of  security  against 
premature  and  ilUonsidered  change.    In  the  United 
fetates  on  the  other  hand,  the  process  is  so  difficult  as 
to  be  almost      po.   Mp  •   It  is  true  that  the  Constitu- 
tion  has  bee.  ..  ,  fifteen  times,  but  an  analysis 

of  the  circumstances  under  which  the  changes  were 
adopted  show  that  in  a  certain  sense  the  Constitution 
has  never  been  amended.   Thus  the  ten  amendments 
which  constitute  the  "Bill  of  Rights,"  or  the  protec- 
tion of  individual   liberty  against   the   action  of  tne 
government,  are  really  part  of  the  Constitution  itself. 
They  were  appended  in  accordance  with  an  agreement 
that  was  reached  at  the  time  of  the  ratification  of 
the  Constitution  itself  and  designed  to  meet  the  obje- 
t.ons  raised  in  Massachusetts  and  elsewhere  against 
the  possible  sacrifice  of  individual  liberty  under  the 
new  national  government.^   The  Eleventh  and  Twelfth 
amendments,  in  reference  to  bringing  suit  against  a 
state  and  to  the  method  of  electing  the  President,  are 
merely  in  rectification  of  oversights,  and  contain  no 
real  departure  from  the  intention  of  the  makers  of  the 

V^J!Z^TS'""u    \''"'''"f^^^--  "^    -  ">-nd.v  quoted  i„ 
Lfiapter  IV  p.  ^8.      It  would  sPen,,"  ,ajs  Wo„,lrow  Wilson  in  his  Con 

^e.,.«„a    GW„™.„,."thatnoi„.puI.se  short  of  the  in.pZ  of  ^  " 
preservation,  no  force  less  than  the  force  of  revolution,  can  nowadavs 

lz::i:^7 ''-  ^--'^^^  -^^--^^  -.au^enr-; 

*  See  Fi.ke,  Critical  Period  of  American  History. 


I 


\ 


ii: : 


136  THE  NATURE  OF  THE  STATE 

Constitution.  The  Thirteenth,  Fourteenth,  and  Fif- 
teenth amendments,  prohibiting  slavery  and  attempt- 
ing to  give  equal  political  status  to  whites  and  blacks, 
only  received  the  required  ratification  by  three  fourths 
of  the  state  legislatures  as  a  consequence  of  the  Civil 
"War  and  the  "  reconstruction  "  of  the  Southern  govern- 
ments.* The  system  may  therefore  fairly  be  criticised 
as  too  cumbrous  for  practical  use.* 

But  the  most  important  of  all  present  methods  of 
constitutional  revision  is  by  a  more  direct  action  of  the 
people  than  any  of  the  plans  mentioned  above.  The 
calling  of  a  representative  convention  elected  expressly 
for  the  purpose  of  making  a  constitution  may  be  looked 
upon  as  the  typical  American  system ;  such  a  consti- 
tution is  in  nearly  all  cases  submitted  to  ratification 
by  popular  vote.  Constitutions  promulgated  directly 
by  the  conventions  themselves  (as  for  example  in  South 
Carolina,  1895,  and  in  Delaware  1897),  are  nowa- 
days qnite  exceptional.  It  is  especially  interesting  to 
compare  with  the  process  of  amending  the  Constitution 
of  the  United  States  the  methods  of  revision  existing 
in  the  federal  governments  of  Switzerland  and  the 
commonwealth  of  Australia.  In  Switzerland  (consti- 
tution of  1874)  a  constitutional  amendment  passes 
through  both  houses  of  the  legislature,  a  simple  major- 
ity  being  sufficient,  and  is  then  submitted  to  the  vote  of 

1  See  Curtis,  Constitutional  History  of  the  United  States,  vol.  ii. 

'  In  1909  the  Income  Tax  Amendment  passed  the  Senate  by  a  nn- 
animoos  vote  and  the  House  by  a  vote  of  317  to  14.  Under  its  terms 
Congress  is  given  power  to  lay  taxes  on  income  without  apportionment 
among  the  states.  By  the  close  of  the  year  1911,  thirty  states  had 
ratified,  and  seven  definitely  rejected  the  amendment.  Its  final  adop- 
tion rouH  therefore  need  the  support  of  6  of  the  remaining  11  statea 
(Arizona  and  New  Mexico  included). 


THE  FORM  OF  THE  STATE  137 

the  people;  it  must  be  ratified  by  a  majority  r.ot  only 
of  the  votes  but  also  of  the  different  cantons  that  form 
the  confederation.    It  is  further  provided  that  a  de- 
mand for  a  revision  of  the  constitution  made  by  either 
branch  of  the  legislature,  or  by  the  petition  of  fifty 
thousand  voters,  must  be  followed  by  a  popular  vote  on 
the  desirability  of  undertaking  a  revision.    The  method 
of  amendment  adopted  under  the  federal  constitution 
of  Australia  is  closely  similar.   Proposals  for  amend- 
ment are  made  in  the  legislature,  and  after  passing  both 
houses  by  an  ordinary  majority  are  submitted  to  the 
people.   To  be  adopted  they  must  obtain  a  majority  of 
the  votes  cast  as  a  total  and  be  carried  in  a  majority 
of  the  states. 

READINGS  SUGGESTED 
Aristotle's  Polities  (Jowett's  translr  '       1885),  bk.  iii. 
Willoughby,  W.  \V.,  The  Nature  of  .    .        te  (1896),  chap,  xiii, 
Borgeaud,  C,  Adoption  and  Amendment        Constitutions  (trans- 
lation, 1895),  part  i. 


FURTHER  AUTHORITIES 
Gareis,  Allgemeines   Staatsrecht  (Marquardsen,  Ilandbuch  des 

Oeffentlichen  Rechts). 
Woolsey,  T.,  Political  Science  (1878),  vol.  i. 
Curtis,  G.  T.,  Constitutional  History  of  the  United  States  (1896). 
Fiske,  J.,  Critical  Period  of  American  History,  1888. 
Bluntschli,  J.  K.,  Theory  of  the  State  (1885). 
Sidgwick,  H.,  Elements  of  Politics  (1897). 
Dunning,  W.,  History  of  Political  Theories  Ancient  and  Medieval 

(1902). 
Plato,  Republic,  bk.  viii. 

Stevens,  C.  E.,  Sources  of  the  Constitution  of  the  United  States 

(1894). 
Schouler,  J.,  Constitutional  Studies  (i897). 


1 


mi 


PART  II 

THE  STRUCTURE  OF  THE  GOVERNMENT 


i! 


Bi     ',} 


CHAPTER  I 

THE  SEPARATION  OF  POWERS 

1.  Nature  of  Executiye,  Leffiglative,  and  Judicial  Power.  — 2.  The- 
ory  of  the  Separation  of  Powen.;  Montesquieu.  —  3.  Influence  of 
this  Theory  in  America  and  France.  -  4.  Extent  of  iu  Application 
in  Existing  (Jovernmenta.  —  5.  ContinenUl  Administrative  Law.  — 
0.   fleneral  Criticism  of  the  Theory  of  the  Separation  of  Powers. 

1.   Nature  of  Executive,  Legislative,  and  Judi- 
Cial  Power.  In  the  first  part  of  the  present  volume  we 
have  been  conceraed  with  the  discussion  of  government 
as  a  whole,  and  with  the  relations  of  the  entire  machi- 
nery  of  the  state  to  the  individual.  The  purpose  of  this 
and  the  following  chapters  is  to  analyze  in  detail  the 
structure  of  government.    For  this  a  .starting-point  is 
found  in  the  division  of  governmental  powers  between 
legislative,  executive,  and  judicial  bodies.   Every  gov- 
ernment that  occupies  more  than  a  quite  i)rimitive  or 
limited  sphere  finds  itself  called  upon  to  perform  du- 
ties of  a  varying  nature.   There  is,  for  example,  a  very 
evident  difference  between  the  functions  exercised  by  a 
member  of  a  legislature,  those  of  a  revenue  officer,  and 
those  of  a  judge.    In  the  first  pkoe  the  government 
has  duties  to  perform  that  are  legislative  and  consist 
in  the  making  of  laws ;  a  parliament,  a  city  council,  or 
a  constitutional  convention  is  a  legislative  body.    Tiiis 
fraction,  though  of  scant  importance  in  primitive  so- 
ciety (in  which  the  idea  of  deliberate  lawmaking  is 
hardly  known),  is  of  vast  importance  and  a  matter  of 


I 


■k    i 


- 


|!| 


1! 


148      THE  STRUCTURE  OF  THE  GOVERNMENT 

constant  necessity  under  the  complex  conditions  of 
modern  life.  In  a  certain  sense,  inasmuch  as  the  mak> 
ing  of  the  law  is  logically  antecedent  to  its  execution 
and  to  decisions  as  to  its  meaning,  the  legislative  func- 
tion is  the  chief  of  the  powers  of  government.  "  The 
legislative  power,"  says  Judge  Story  in  his  "  Common- 
taries  ou  the  Constitution,"  "^  is  the  [re&i  and  overrul- 
ing  power  in  every  free  government."  Looked  at  in  a 
purely  theoretical  light,  the  executive  function  of  the 
government  (the  carrying  out  of  the  law)  appears  in 
a  quite  mechanical  and  secondary  aspect.  In  point  of 
fact,  however,  the  functions  of  the  executive  branch  of 
the  government  are  of  great  importance.  No  matter 
how  explicitly  laws  are  made,  they  must  of  necessity 
leave  a  wide  discretionary  power  in  the  hands  of  those 
who  enforce  them ;  in  many  matters  —  most  notably  in 
relations  with  foreign  states  —  the  executive  branch  of 
government  must  act  without  explicit  instructions,  and 
is  no  longer  to  be  regarded  as  merely  the  agent  of  the 
legislative  branch  of  the  government.  The  organized 
physical  force  —  armies,  navies,  police,  etc.  —  is  at  the 
command  of  the  executive,  —  i?,  in  a  sense,  a  part  of 
the  executive.  It  is  with  the  executive  (in  the  shape 
of  police,  revenue  officers,  postmasters,  etc.)  that  the 
individual  citizen  is  chiefly  in  contact.  Indeed  in  any 
modern  government  the  executive,  even  apart  from 
the  army  and  navy,  vastly  outnumbers  the  two  other 
branches.  The  executive  civil  service  of  the  United 
States  includes  over  300,000  nositions ;  there  are  less 
than  140  federal  judges  and  only  476  members  of 
Congress.  The  jud  'al  organs  of  a  government,  whose 
function  it  is  to  pronounce  as  to  the  application  of  the 


THE  SEr  .RATION  OF  POWERS  143 

law  to  existing  cases,  though  like  the  executive  theoret- 
ically inferior  to  the  legislature,  exercise  in  reality  a 
function  of  the  greatest  consequence  to  the  citizen,  and, 
in  the  case  of  the  United  States,  a  function  of  a  pecu- 
liar constitutional  importance. 

a  Theory  of  the  Separation  of  Powers.  At  the 
beginnings  of  modern  democratic  government,  and  in 
particular  in  the  political  writings  of  the  eighteenth 
century,  it  was  a  cardinal  doctrine  of  political  science 
tliat  these  three  branches  of  government,  the  legislative, 
the  executive,  and  judicial,  should  be  kept  separate  from 
one  another.   A  different  body  of  persons  was  to  ad- 
minister each  of  these  three  departments  and  neither 
body  was  to  have  a  controlling  power  over  either  of  the 
others.    It  was  thought  that  in  this  way  a  peculiar 
guarantee,  indeed  the  only  adequate  guarantee,  might 
be  given  to  public  liberty.  This  is  what  is  known  as  the 
theory  of  the  separation  of  powers.   It  is  not  meant 
that  this  theory  was  altogether  new  in  the  eighteenth 
century.   We  find  traces  of  it  as  far  back  as  Aristotle; 
and  Polybius  in  the  sixth  book  of  his  "  History  of 
Rome,"  in  which  he  treats  of  the  Roman  constitution, 
describes   in  detail  and  with  approval   the  balanced 
powers  intrusted  to  the  senate,  the  consuls,  and  the 
tribunes.    It  was  natural,  however,  that  with  the  de- 
cline of  monarchical  absolutism  and  after  the  great  ob- 
ject-lesson of  the  English  revolution  of  1688,  construe 
tive  theories  pointing  towards  possibilities  of  popular 
sovereignty  should  receive  especial  attention.   At  the 
hands  of  Montesquieu,  author  of  the  "  Spirit  of  Laws  " 
(1748),  the  theory  met  with  a  definite  and  emphatic 
presentation,  destined  to  give  it  a  lasting  influence  on 


r! 


It  i'  4 


«i 


f;> 


144      THE  STRUCTl  f  ',  OF  THE  GOVERNMKNT 

lubsequent  political  int^titutions.  "If  the  legislative 
and  executive  power,"  o..,j  Montesquieu,  "are  united 
in  the  same  person  or  in  the  same  botly  of  persons, 
there  is  no  liberty,  beeaii-c  n{  the  danger  that  the  same 
monarch  or  the  sam  .^.m  .<  may  make  tyrannical  laws 
and  execute  then  '■^••- mi "  a  ly.  Nor  again  is  there  any 
liberty  if  the  judit!.!.  \r\yn-  is  not  separated  from  the 
legislative  and  the  '  xcirutis. 
legislative  power,  t'.f  jh  W' 
the  citizens  would  Ih  d  . 
be  the  lawmaker,  l-'  •:  a 
power,  the  judge  w  i  <!  h. 


8or."  •   A  similar  juujnnent 


If  it  were  joined  to  the 

of  the  life  and  liberty  of 

r"  :  .ui     I  «  judge  would 

•1  jii  .lU  to  the  executive 

!    '  >  force  of  an  oppres- 

pressed  by  the  great 


English  jurist,  Black:itoue,  in  hi^  "  Commentaries  on 
the  Laws  of  England  "  (17(55).  "  In  nil  tyrannical  gov- 
tirnments  the  supn  lae  majesty,  or  the  right  both  of 
making  and  enforcing  laws,  is  vested  in  the  same  man 
or  one  and  the  same  l)ody  of  men  ;  and  when  these  two 
powers  are  united  together  there  is  no  public  liberty." 
Both  of  these  authors  are  led  to  the  statement  of  tlie 
theory  of  distributed  powers  from  their  analysis  of  the 
British  constitution.  At  the  time  at  whicli  they  wrote 
the  cabinet  system  was  only  in  the  earlier  stage  of  its 
development.  The  junction  of  both  the  virtual  execu- 
tive and  the  legislative  power  in  the  Lands  of  a  cabinet 
or  committee  chosen  out  of  the  legislature  was  not  the 
evident  fact  that  it  is  to-day.  A  British  ministry  of 
Montesquieu's  time  was  still  not  a  unit :  it  allowed  of 
divergence  of  opinion  among  its  members  ;  nor  did  the 
latter  all  take  office  or  leave  it  at  the  same  time.  Mon- 
tesquieu,  therefore,   somewhat   excusably   overlooked 

*  Esprit  des  Lois,  bk.  zi,  chap.  vi. 


i:  -M 


TIIK  SKI'ARATION  OF  POWERS  14S 

what  has  since  become  the  leading  fact  of  the  Riitisth 
constitution,  and  tht)ught  to  see  in  it  a  balance  (»f 
power  efffoied  between  the  king  and  the  tvo  hiMis«<<  of 
l*arlianioiit,  neither  of  whom  was  sui).emo  over  the 
othn-,  an<l  from  each  of  whom  the  ji  lii-iary  was  to  a 
largf  extent  indejwndent.  Ulackstone,  vi.'wing  the  con- 
stitution only  as  a  lawyer,  kn(»W8  nothing  of  a  cabinet. 
The  ministry  as  known  to  the  law  even  at  the  present 
day  are  the  api)ointed  servants  of  the  crown.  The  fact 
of  their  political  unity  and 'membership  of  the  legisla- 
ture is  only  a  matter  of  custom,  not  of  law. 

3.  Influence  of  this  Theory  in  America   and 
France.   The  dot-trine  of  public  liberty  effected  by 
distribution  of  jwwer  became  thus  almost  an  article  of 
faith  with  political  writers  of  the  eighteenth  century. 
The  fact  was  of  vital  importance  for  the  Iiistory  of  the 
United  States.    At  the  time  of  the  establishment  of 
the  stat«.'  governments  the  doctrine  was  put  into  prac- 
tice by  the  separation,  not  of  course  complete,  but  yet 
far  reaching,  of  the  different  branches  of  the  govern- 
ment. The  indei)endent  eleetion  of  state  governors  aiul 
legislatures,  the  absence  of  the  power  of  dissolution, 
were  embodied  in  the  state  constitutions,  and  have  re- 
mained as  fundamental  parts  of  tiie  American  system 
of  government.    That  the  adoption  of  this  plan  was 
conscious  and  deliberate  is  seen  in  the  often  quoted 
passage   of   the   Massachusetts   constitution   of    1780 
(iKirt  i,  art.  xxx):  "In  the  government  of  this  com- 
monwealth, the  legislative  department  shall  never  exer- 
cise the  executive   and  judicial    powers,   or  either  of 
them  ;  the  executive  shall  never  exercise  the  legislative 
and  judicial  powers,  or  either  of  them ;   the  judicial 


f/  ;■£■  ^»' 


i\ 


',■..'1 


11, 


i 


! 


146      THE  STRUCTURE  OF  THE  GOVERNMENT 

shall  never  exercise  the  legislative  and  executive  powers, 
or  either  of  them  ;  to  the  end  it  may  be  a  government 
of  laws,  and  not  of  men.'' 

The  same  theory  exercised  the  greatest  influence  over 
the  convention  of  1787,  in  which  the  federal  constitu- 
tion was  framed.  Its  members  recognized,  indeed,  the 
need  for  a  modification  of  the  rigidity  of  the  doctrine 
of  separation,  but  in  the  main  they  accepted  it  and 
made  it  the  basis  of  the  Constitution  of  the  United 
States.  "  The  accumulaticfn  of  all  powers,"  says  the 
"  Federalist "  (the  set  of  essays  written  in  defense  of 
the  Constitution  by  Hamilton,  Madison,  and  Jay), 
"  legislative,  executive,  and  judicial,  in  the  same  hands, 
whether  of  a  few  or  many,  aii('  whether  hereditary,  self- 
appointed,  or  elective,  may  be  justly  pronounced  the 
very  definition  of  tyranny." 

The  fact  that  even  the  state  constitutions  of  1776 
and  1777  and  the  federal  constitution  of  1787  do  not 
adopt  an  absolutely  complete  separation  of  powers  of 
government,  naturally  suggests  the  question  in  how  far 
such  a  separation  would  be  possible,  and  what  would 
be  implied  by  a  complete  adoption  of  the  principle. 
It  would  mean  a  constitution  constructed  on  such  a 
plan  as  the  following:  A  legislature  elected  directly 
by  the  people,  a  set  of  executive  officers  either  elected 
by  the  people  (independently  of  tlie  action  of  the  legis- 
lature) or  ai)pointed  by  some  person  or  body  of  per- 
sons elected  by  the  people;  judges  similarly  elected 
and  independent  as  to  their  tenure  of  office  and  emolu- 
ment of  both  the  legislature  and  the  executive.  Even 
then  it  might  be  questioned  whether  the  liability  of 
executive  officers  to  be  tried  before  the  judiciary  for 


THE  SEPARATION  OF  POWERS  147 

breaches  of  official  duty  or  violation  of  their  legal 
powers,  would  not  be  at  variance  with  a  logically  com- 
plete  separation  ;  this,  however,  will  be  considered  later 
in  dealing  with  the  administrative  law  of  Continental 
Europe.    But  granting  such  a  separate  election  and 
independent  tenure  of  office  on  the  part  of  the  three 
departments  of  government,  there  would  still  remain  a 
sense  in  which  the  separation  would  not  be  complete, 
in  which  indeed  it  can  never  be  complete  without  a 
reductio  ad  absurdum.   The  law  enforced  by  the  ex- 
ecutive  and  adjudicated  on  by  the  courts  would  stUl  be 
the  law  made  by  the  legislature.   It  is  to  be  noted  also 
that  such  law  might  conceivably  be  extremely  tyran- 
nical  and  unjust.    The  executive  and  the  judges  would 
still  have  to  apply  it,  and  thus  the  separation  of  power 
in  and  of  itself  would  o£fer  no  guarantee  of  individual 
liberty. 

The  theory  of  separation  obtained  during  the  revo- 
lutionary  era  in  France  an  influence  no  less  marked 
than  in  the  United  States.   The  constituent  assembly 
of  1789  adopted  it  as  a  fundamental  principle  in  their 
construction   of  a    new  government.     The   sixteenth 
article  of  the  formal  Declaration  of  Rights  with  which 
they  prefaced  their  constitution,  declares,  "  Every  so- 
ciety in  which  the  separation  of  powers  is  not  deter- 
mined  has  no  constitution."   In  accordance  with  this 
general  principle,  the  constitution  established  a  legis- 
lature not  dissolvable  by  the  king,  forbade  the  ministers 
and  other  executive  officers  to  hold  seats  in  the  legis- 
lature, gave  to  the  king  no  right  of  initiative,  and  only 
a  partial  veto  power,  and  instituted  judges  elected  by 
the  people.  The  later  constitutioi^  of  1795  modified 


I> 


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Si 

1 

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J. "I 

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11 

11 

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148     THE  STRUCTURE  OF  THE  GOVERNMENT 

the  separation  by  instituting  a  plural  executive,  —  the 
Directory,  elected  by  the  legislature  itself. 

4.  Extent  of  its  Application  in  Existing  Gov- 
ernments. In  the  course  of  the  nineteenth  century 
the  theory  of  separated  powers  has  lost  a  great  deal 
of  its  former  credit.  The  conspicuous  example  of  the 
British  constitution  invalidates  it  as  a  universal  propo- 
sition. Here  the  development  of  the  cabinet  system 
since  Montesquieu's  time  has  tlirown  the  virtual  direc- 
tion of  both  legislative  and  executive  power  into  the 
hands  of  the  same  body  of  men.  Yet  it  would  be  ab- 
surd to  say  that  public  liberty  in  the  United  Kingdom 
has  thereby  been  sacrificed.  As  the  British  constitution 
now  stands,  the  group  of  eigliteen  or  twenty  persons 
who  compose  the  cabinet  have  the  conduct  of  the 
executive  government.  They  also  direct  the  course  of 
legislation,  since  a  majority  of  the  predominant  part 
of  the  legislature  —  the  House  of  Commons  —  are  pre- 
pared to  support  their  measures.  Should  they  lose  that 
support  they  resign  their  office.  Thus  the  very  con- 
trary of  the  idea  of  divided  powers  seems  to  be  the 
case.  The  executive  officers  remain  such  only  so  long 
as  they  retain  the  legislative  power.  The  legal  theory 
of  the  constitution,  on  the  other  hand,  still  offers  the 
spectacle  of  more  or  less  opposing  powers  mutually 
balanced,  —  the  king  and  his  ministers  (appointed,  in 
the  theory  of  the  law,  according  to  his  pleasure,  and 
being  merely  his  servants)  conducting  the  executive 
government,  while  the  houses  of  Parliament  make  the 
laws.  The  analysis  of  the  British  government  given 
by  Walter  Bagehot,  the  distinguished  economist  and 
essayist,  in  his  "English  Constitution"  (1867),  has 


5 

i 


THE  SEPARATION  OF  POWERS  149 

served  to  show  how  completely  the  development  of 
cabinet  government  has  rendered  the  earlier  view  of 
the  British  constitution  inapplicable  to  the  present 
situation.  In  certain  other  respects  the  British  consti- 
tution offers  in  actual  fact  some  features  of  distributed 
powers,  the  most  notable  being  that  of  the  tenure  of 
office  of  the  judges,  who  are  made  virtually  independ- 
ent  by  being  appointed  for  life  or  good  conduct. 

Nor  is  there  a  separation  of  powers  observed  in  the 
present  parliamentary  governments  of  France  and  Italy. 
In  France  the  president  is  elected  by  the  legislature. 
His  ministers  are,  in  practice,  though  not  in  law,  the 
representatives  of  a  majority  in  the  Chamber  of  Depu- 
ties.  In  the  same  way  the  king  of  Italy  governs  by 
means  of  a  party  ministry.   In  Germany,  in  the  Actual 
working  of  the  federal  constitution,  the  powers  of  gov- 
ernment  are  not  distributed.    The  German  emperor 
holds  the  executive  power  of  the  federation.    In  his 
capacity  of  king  of  Prussia  he  has  also  a  very  great 
share  of  Lgislative  control.   In  the  first  place  there  are 
many  measures '  — those  introducing  any  change  of 
existing  regulations  concerning  the  army,  navy,  cus- 
toms, and  excise  — which  cannot  be  enacted  without 
the  consent  of  his  appointed  delegate  in  the  Bundes- 
rath  or  upper  house  of  the  legislature.   Through  the 
same  channel  he  enjoys  an  initiative  power  for  any 
kind  of  legislation,  the  control  of  seventeen  out  of  fifty- 
eight  votes  in  the  Bundesratb,  and  a  veto  upon  consti- 
tutional  amendments. 

Even  under  the  Constitution  of  the  United  States, 
the  principle  of  distributed  powers  is  only  adopted  in 

»  Federal  ConaamUoii,  uticlra  mxv  ud  mxtL 


t 


1 4 


150      THE  STRUCTURE  OF  THE  GOVERNMENT 

the  federal  government  to  a  modified  extent.    The 
executive  is  not  without  a  share  in  legislation,  since 
tho  President  has  a  partial  veto  power  on  the  acta 
passed  by  the  Congress,  and  something  resembling  a 
power  of  initiative  by  means  of  presidential  messages. 
Nor  is  the  legislature  without  share  in  the  executive 
government,  as  is  seen  in  the  ratification  by  the  Senate 
of  treaties  and  appointments.   The  judges  are  the  ap- 
pointees of  the  executive,  and  the  courts  are  empowered 
to  pass  on  the  constitutionality  of  the  acts  of  the  two 
other  branches  of  the  government.   Even  this  qualified 
separation  existing  under  the  law  of  the  Constitution 
is  still  further  modified  in  the  actual  operation  of  the 
government.    Here  the  existence  of  the  party  system 
is  an  important  factor.   Though  standing  outside  of  the 
legal  machinery  of  the  government,  it  none  the  less 
acts  as  a  bond  of  union  between  the  legislature  and  the 
heads  of   the  executive  government.    Whenever  the 
executive  and  the  majority  in  the  houses  of  Congress 
are  of  the  same  political  party  (as  has  been  continu- 
ously the  case,  for  instance,  between  the  years  1895 
and  1907),  they  are  under  the  guidance  of  common 
councils,  and  are  united  in  the  pursuit  of  the  same 
ends.   It  is  possible,  indeed,  to  look  upon  the  singu- 
larly  systematic  and  powerful  growth  of  the  party  sys- 
tem in  the  United  States  as  a  sort  of  "  natural "  evolu- 
tion consequent  upon  the  attempt  to  keep  apart  the 
powers  of  government ;  an  attempt,  as  it  were,  on  the 
part  of  nature  to  rectify  an  error  in  organic  structure, 
a  process  analogous  to  the  healing  of  a  fractured  limb.' 
In  the  state  governments  the  separation  of  powers  is 

^  See  F.  GouJuuw,  rulitks  and  Administration. 


■=l 


THE  SEPARATION  OF  POWERS  161 

more  nearly  complete.    The  separate  election  by  the 
people  of  the  governor  and  other  executive  officers 
the  legislature,  and  the  judges,  is  the  prevalent  con- 
stitutional arrangement.    The  partial  veto  power  given 
to  the  governor  in  nearly  all  the  states  of  the  Union,' 
and  the  governor's  right  of  sending  messages  to  the 
legislature,  are  a  departure  from  the  rigidity  of  the  doc- 
trine.    In  all  the  states,  too,  the  courts  have  cognizance 
of  the  official  acts  of  the  members  of  the  government. 
5.  Continental  Administrative  Law.  Inthecoun- 
tries  of  continental  Europe  an  application  of  the  prin- 
ciple  of  separation  is  made  quite  contrary  to  American 
ideas  of  government.   The  officers  of  the  government 
acting  in  their  official  capacity  cannot  be  brought  to 
account  before  the  ordinary  courts  of  law ;  nor  can  the 
courts  question  the  validity  of  an  act  of  the  legislature. 
Such  a  system  professes  to  rest  on  tJie  principle  of  the 
separation  of  powers,  by  protecting  the  executive  and 
judic  .ry  from  the  control  of  the  third  branch  of  the 
government.    The  protection,  liowever,  is  only  afforded 
at  the  expense  of  the  individual  citizen,  the  practical 
effect  of  this  fallacious  form  of  separation  being   to 
strengthen  very  much  the  hands  of  the  executive.   The 
peculiar  relation  thus  established  between  the  execu- 
tive  and  judicial  branches  of  the  government  will  be 
treated  more  fully  in  a  later  chapter. 

6.  General  Criticism  of  the  Theory  of  the  Sep- 
aration of  Powers.  It  remains  to  consider,  in  con- 
clusion, to  what  extent  the  theory  of  the  separation  of 

.ilJ^T^""""  ^'""  *  P"*'"'  ''"*"  "'  ^"''y-"^^  °f  the  fortv-five 
it*t«i.  The  exceptions  are  Rhode  Island.  Ohio,  Delaware.  a,,d  North 
Cwohn..  6,ee  Pro£e«or  A.  B.  Hart.  Actual  Government,  pp.  136, 137. 


I  • 


f 


v..m 


^m     THE  STRUCTURE  OF  THE  GOVERNMENT 

powers  is  to  be  regarded  as  true.   Stated  in  the  form 
of  a  universal  principle,  as  by  Montesquieu  and  Black- 
atone,  in  the  quotations  above,  it  is  undoubtedly  false. 
It  is  not  true  that  there  cannot  possibly  be  public  lib- 
erty where  executive  and  legislature  are  joined  in  the 
same  hands.   The  example  of  Great  Britain  alone  amply 
proves  this.   Nor  is  it  true  either  that  the  separation  of 
the  powers  of  government  of  necessity  guarantees  the 
individual  against  possible  tyranny,  establishes  in  and 
of  itself  a  government  "  of  laws  and  not  of  men."   A 
single  government  board  or  body  of  directors  need  not 
of  necessity  act  tyrannically  ;  nor  does  it  follow  that  an 
executive  officer  and  a  legislative  council  elected  and 
acting  separately  will  of  necessity  act  in  the  public  in- 
terest.  But  though  no  such  universal  formula  can  be 
laid  down,  it  remains  true  that  in  the  actual  conduct  of 
public  affairs  a  certain  degree  of  separation  of  powers 
makes  towards  efficient  government.   The  divergent 
requisites  in  the  composition  of  executive  and  legisla- 
tive bodies  will  be  treated  in  the  next  chapters ;  it  is 
apparent,  however,  that  absolute  identity  of  the  two  is 
not  to  be  recommended.   The  separation  of  the  judiciary 
to  the  extent  at  least  of  independence  in  tenure  of  office 
is  admitted  by  all  to  be  desirable.   The  question  of  the 
advisability  of  establishing  an  executive  controllable  by 
the  legislature  (as  in  the  cabinet  system  of  Great  Brit- 
ain), or  of  following  the  system  adopted  in  the  state 
governments,  is  a  disputed  point.   Its  solution  will  de- 
pend upon  the  particular  circumstances  and  the  his- 
torical antecedents  of  each  community.   Americans  are 
inclined  to  look  with  favor  on  the  system  of  popular 
election  of  state  officers.   Such  writers  as  A.  Lawrence 


i 


THE  SEPARATION  OF  POWERS  153 

Lowell  in  his  "  Essays  on  Government "  and  John  Fiske, 
"  Civil  Government  in  America,"  have  ably  argued  in 
defense  of  the  American  plan.  The  English,  on  the 
other  hand,  are  inclined  to  view  the  union  of  powers  in 
the  hands  of  the  cabinet  as  the  most  admirable  feature 
of  their  system  of  government. 

READINGS  SUGGESTED 
Montesquieu,  Esprit  des  Lois  (1748),  bk.  xi,  chap.  vi. 
The  Federalist  (1788),  Essays  Nos.  47-51. 
Bagehot,  W.,  Eoglish  Constitution,  chap.  ii. 

FURTHER  AUTHORITIES 
Poljrbius,  History  of  Rome,   bk.  vi. 
Goodnov,  F.,  Comparative  Administrative  Law  (1897). 
Hdie,  M.  F.,  Les  Constitutions  de  la  France  (1880). 
Goodnow,  F.,  Politics  and  Administration  (1900). 
Hart,  A.  B.,  Actual  Government  (1893). 
Lowell,  A.  L.,  Essays  on  Government  (1889). 
Fiske,  J.,  Civil  Government  in  America  (1891). 


CHAPTER  II 

THE  LEGISLATURE 

1  The  Ledslature;  General  Requisite.,  Procedure,  etc. -2.  The 
BicLeri  System  ;  Reason,  for  its  Adoption.  -  3.  Conjpos.Uon  of 
Upper  Hou«>..  -  4.  Distribution  of  Power  between  the  Two  Uou«». 
-6.  Direct  Legislation;  the  Initiative  and  the  Referendum. 

1.  The  Legislature;  General  Requisitee,  Pro- 
cedure etc.  It  has  been  naid  in  the  preceding  chapter 
that  there  is  a  necessary  diversity  in  the  composition  of 
the  different  branches  of  the  government  to  meet  the 
distinctive  requirements  of  each.   The  executive  is  con- 
oemed  with  action  more  than  deliberation ;  promptness 
and  unity  of  purpose  are  the  prime  requisites.   For  the 
judiciary,  the  technical  knowledge  of  the  actual  law  to 
be  applied,  and  u  trained  logical  faculty  to  be  used  in 
its  application  are  above  all  necessary.    The  legisla- 
ture, on  the  other  hand,  demands  an  entirely  different 
Bet  of  qualities.    The  legislature  is,  par  excellence,  a 
deliberative  body,  and  for  deliberation  two  heads  are 
better  than  one,  and  two  hundred  are  better  than  two. 
A  legislative  body  must  consist  of  many  persons,  repre- 
senting  numerous  interests,  various  points  of  view,  and 
different  sections  of  the  community.   No  precise  size  can 
be  indicated  as  proper  for  a  legislature;  as  numbers 
increase  the  gain  in  added  wisdom  is  offset  by  the  in- 
creased  cumbrousness.   The  French  constituent  assem- 
bly,  called  in  iV89,  consisted  of  nearly  1200  members. 
This  was  the  largest  legislative  body  of  modem  times, 


THE  LEGISLATURE 


MS 


and  was  found  hopelessly  unwieldy.  Of  the  popularly 
elected  legislatures  of  the  world,  the  House  of  Repre- 
sentatives at  Washington  in  1918  contained  435  mem- 
bers, the  British  House  of  Commons  670,  the  French 
Chamber  of  Deputies  597,  the  German  Reichstag  397, 
the  Italian  Deputies  numbered  508,  and  the  Spanish 
Congpress  had  406  members.  The  number  of  members 
in  the  state  legislatures  of  the  United  States  varies 
very  much.  New  Hampshire  (1913)  has  405,  Massachu- 
setts  240,  and  Virginia  100  in  the  lower  house,  while 
Delaware  has  only  85. 

It  is  hardly  possible  to  accomplish  the  work  of  actual 
legislation  amon^  such  large  bodies  of  men,  without 
the  adoption  of  definite  plans  and  systems  of  procedure. 
Any  large  gathering  which  acts  at  ha})hazard  and  with- 
out formal  rules  is  liable  to  become  a  mere  babel  of 
tongues ;  its  resolutions,  to  use  iVIr.  Bagehot's  phrase, 
get  "  wedged  in  the  meeting."  This  was  the  case  with 
the  French  Assembly  of  1789,  already  referred  to,  whiclt 
in  its  first  enthusiasm  was  inclined  to  proceed  "  accord- 
ing to  the  promptings  of  the  spirit,"  rather  than  to 
follow  any  formal  plan.  They  rejected  the  suggestion 
that  they  should  adopt  the  standing  orders  of  the  House 
of  Commons.  "They  discuss  nothing  in  their  assem- 
bly," wrote  Gouverneur  Morris,  at  that  time  in  Paris, 
and  an  interested  observer  of  their  proceedings.  "One 
large  half  of  their  time  is  spent  in  hallooing  and  bawl- 
ing." Universal  experience  has  therefore  shown  the 
need  of  what  is  called  legislative  procedure,  a  definite 
method  of  doing  business  which  the  legislature  adopts 
as  part  of  the  necessary  formality  of  the  making  of  a 
law.    Such  rules  have  been  adopted  by  all  the  chief 


\r\ 


I 


ill 


156     THE  STRUCTURE  OF  THE  GOVERNMENT 

legiskturet  of  the  world.  They  are  of  oonne  made  by 
the  legislature  itself,  and  can  consequently  be  set  aside 
if  need  be  in  moments  of  stress.  The  objects  aimed  at 
are  the  orderly  and  efficient  dispatch  of  business,  the 
prevention  on  the  one  hand  of  precipitate  and  ill-con- 
sidered action,  and  on  the  other,  of  fruitless  prolixity 
of  debate.  The  rules  thus  adopted  tend  to  be  ex- 
tremely intricate  and  confusing  by  reason  of  the  vast 
amount  of  business  that  tries  to  force  itself  upon  a 
modem  legislature.  Mr.  Bryce  in  his  "  American  Com- 
monwealth "  tells  us  that  an  industrious  member  of  the 
House  of  Representatives  needs  one  whole  session  to 
learn  the  rules  of  procedure. 

A  few  general  features  of  procedure  adopted  in  most 
legislative  bodies  may  be  mentioned.  The  most  impop- 
tant  is  the  device  of  requiring  a  bill  to  be  voted  on, 
not  once  and  for  all,  but  at  three  separate  "  readings," 
or  intervals  of  time.   This  is  intended  to  prevent  the 
legislature  from  acting  on  the  spur  of  the  moment,  and 
committing  itself   to  a  measure  under  the  influence, 
perhaps,  of  momentary  emotion.    In  the  British  House 
of  Commons,  "  the  member  who  desires  to  introduce  a 
measure  gives  notice  ...  of  his  intention  to  do  so. 
When  the  motion  comes  on  in  its  order,  he  moves  for 
leave  to  introduce  a  bill.  ...  An  order  of  the  House 
is  made  that  the  bill  be  prepared  and  brought  in  by  the 
mover  and  other  members  named  by  him.   The  bill  may 
then  immediately  be  presented,  which  is  done  by  the 
member  appearing  at  the  bar,  whereupon  the  Speaker 
calls  upon  him  by  name,  he  calls  out, '  A  bill,  sir,'  and 
is  desired  by  the  Speaker  to  bring  it  up.    He  brings  it 
to  the  table  and  delivers  it  to  the  clerk  of  the  House, 


THE  LEGISLATURE 


187 


J 


hy  whom  its  title  is  read  aloud.  The  questions  that  a 
bill '  be  now  read  a  first  time,'  and  that  it  be  priuted 
are  nut  without  amendment  or  debate;  an  order  is 
then  liiade  that  it  be  read  a  second  time  on  a  day 
named."  On  this  day  the  bill  is  again  brought  up,  and 
a  vote  taken  on  the  question  that  the  "  bill  be  now 
read  a  second  time  ;  "  having  successfully  passed  this 
stage  it  is  referred  to  what  is  called  a  committee  of  the 
whole  House ;  here  it  is  discussed,  voted  on  clause  by 
clause,  and  probably  amended.  At  tlio  conclusion  of 
this  stage  a  day  is  set  for  the  final  consideration  of  the 
bill ;  the  bill  is  presented  in  iu  revised  form  to  the 
House,  and  unless  further  amendents  are  now  carried, 
it  is  submitted  to  its  third  and  final  reading.  Even 
after  this  the  bill  may  have  to  be  reconsidered  if 
amended  in  the  Upper  House.' 

Another  device  of  legislative  procedure  is  the  dele- 
gation of  the  work  of  the  legislature  to  a  series  of 
committees.  The  aim  of  this  is  to  facilitate  the  dis- 
patch of  business,  and  to  enable  the  legislature,  by 
dividing  itself  into  sections,  to  multiply  its  powers  of 
work.  The  system  has  been  most  completely  developed 
in  the  House  of  Representatives.  Here  the  so-called 
first  and  second  readings  are  a  purely  perfunctory 
matter,  and  mean  the  reading  of  the  title  by  the  clerk. 
After  this  the  bill  is  referred  to  the  appropriate  stand- 
ing committee.  These  are  nominated  by  the  speaker, 
and  are  representative  of  both  the  great  political  par- 
ties. In  the  Sixty-Second  Congress  there  were  over  sixty 
standing  committees  of  the  House  of  Kepresentatives ; 

*  Aown,  Xaw  and  Cuttom  of  the  Contlitution,  part  i,  chap,  to,  leet 
ii,  §  2. 


il 


M 


158      TIIK  STRUCTURE  OF  THE  OOVEUXMENT 

the  comnutteeB  o»i  Way:  .ind  Means,  on  Appiopriations, 
on  Ranking  and  Curren*-, ,  on  Commerce,  on  Claims, 
Manufactnrinff,  Pen.  .us,    ;tc.,  are   among  the  most 
imiMrto.    ■    1;  o  great  majority  of  billa  never  survive 
their  referenr»>    i.  i  committee  ;  the  committee,  tliough 
it  has  no  'jrmal    i  ower  to   negative  a  hill,  destroys 
them  either  by    ..akinjj;  an  adverse  re[K)rt  or  by  iu- 
trmlucing  an  >tl    i    bill  as  a   substitute  or  by  simple 
neglect.    Sut-.i     Hystem,  accomi)anied  as  it  is  by  strin- 
gent rules  of  d'.'bate.  tends  of  course  to  remove  the  ac- 
tual conduct  of  business  from  the  House  itself,  and  to 
discourage  independent  action  on  the  part  of  individual 
nieml>er8.  The  French  Cabinet  of  Deputies  adopts  the 
peculiar  system  of  dividing  its  members  by  lot  into 
eleven  sections  or  panels ;  out  of  these  a  special  com- 
mittee is  elected  (by  the  members  of  the  panel)  for 
each  bill  that  is  presented.    Such  a  plan  is  plainly  un- 
satisfactory, as  it  does  not  accord  with  the  system  of 
cabinet  government  supposed  to  operate  in  the  French 
legislature.    The  hazard  of  the  lot  may  lead  to  govern- 
ment bills  being  handed  over  to  opposition  committees. 
It  is  easier,  however,  to  see  the  faults  in  legislative  pro- 
cedure than  to  suggest  adequat.   remedies. 

A  further  point  of  importance  in  the  conduct  of 
legislative  business  is  the  need  of  some  method  of  for- 
cibly bringing  the  debate  to  a  close.  The  procedure  of 
most  assemblies  allows  means  whereby  a  vote  may  be 
taken  on  the  question  of  terminating  the  discussion  and 
voting  on  the  matter  under  consideration.  To  this  general 
rule  the  Senate  of  the  United  States  is  an  exception ; 
it  has  been  a  part  of  the  traditional  dignity  of  that  body 
not  to  interfere  with  the  freedom  of  discussion  by  clos- 


TlIE  LEGISLATURE 


IKO 


Ing  the  debate.'  In  the  House  of  ItrpreR^ntativeR,  how- 
ever, the  cloHiiH'  of  the  debate,  the  "  previous  question," 
as  such  a  motion  in  called,  may  be  niovftl  by  any  mem- 
ber, and  is  carried  if  supported  by  a  majority  of  those 
present.  Until  quite  recently  the  British  House  of 
Commons  had  no  such  rule.  It  happned,  however,  that 
during  Mr.  Gladstone's  second  administration  ( 1880- 
85)  the  Irish  members  look  advantJige  of  il  U  fact  to 
block  all  parliamentary  business  by  talking  against 
time.  This  has  rendered  it  necessary  for  tlie  House 
somewhat  reluctantly  to  adopt  n  rule  of  closure  (stand- 
ing order  of  1882,  revised  18k7).  Uiu lor  the  present 
regulations  a  motion  can  be  made  for  tcrniinutinfr  tlu! 
debate;  the  speaker  is  allowcil  to  use  his  diseration  aa 
to  whether  or  not  he  will  submit  the  motion  t;i  .i  vol-. 
A  similar  pur[>08e  is  effected  by  what  is  calloil  the 
"closure  by  compartments  "•  or  "the  guillotine,"  which 
consists  in  a  resolution  of  the  House  either  altogether 
precluding  discussion  on  certain  clauses  of  a  bill  or  lim- 
iting the  time  to  be  allotted  to  the  bill  or  to  parts  of 
it.  This  rather  drastic  form  of  procedure  was  applied 
in  the  case  of  the  Home  Rule  Bill,  which  narrowly 
passed  the  Commons  in  1893.' 

2.  The  Bicameral  Sjrstem;  Reasons  for  its 
Adoption.  Of  all  the  means  that  have  been  used 
to  secure,  in  the  work  of  legislation,  a  due  amount  of 
caution  and  reflection,  the  njost  important  is  the  divi- 
sion of  the  legislature  into  two  parts,  creating  thus 
what  is  called  a  two-chambered  or  bicameral  lesrislature. 

*  In  peferonr*  tn  thp  rlosnre  of  debate  in  AmericaB  Legislatures, 
Me  Hart,  Actual  Government,  {  110. 

*  See  Anson,  Law  and  Custom,  part  L 


i 


■■  I 


160      THE  STRUCTURE  OF  THE  GOVERNMENT 

It  is  not  meant  that  the  desire  to  avoid  precipitate 
action  is  the  sole  reason  for  establishing  a  legislature 
of  this  sort;  it  will  presently  be  seen  that  it  often 
serves  other  purposes  as  well,  but  such  is  none  the  less 
the  main  ground  on  which  the  separation  of  the  legisla- 
ture into  two  parts  is  to  be  defended.  At  the  present 
time  the  bicameral  system  is  of  almost  universal  preva- 
lence. The  United  States,  the  United  Kingdom,  France, 
Germany,  and  all  the  chief  countries  of  Europe  have 
bicameral  legislatures.  The  kingdom  of  Greece  alone 
vests  the  legislative  power  in  a  single  chamber  (the 
Bule).  Mexico  and  the  South  American  states  have 
copied  the  United  States  in  est::«blishing  "  congresses  " 
composed  of  senates  and  houses  of  representatives,  in 
some  cases  (as  in  Brazil)  denominated  chambers  of 
deputies.  F  en  in  the  subdivisions  of  federal  govern- 
ments the  bicameral  structure  of  the  legislature  is  often 
found.  All  of  the  forty-eight  states  of  the  Union  have 
legislatures  consisting  of  a  senate  and  another  house. 
In  Canada  two  of  the  provinces  (Quebec  and  Nova 
Scotia)  have  an  upper  and  a  lower  house,  and  the 
"  states "  of  the  commonwealth  of  Australia,  and  the 
different  kingdoms,  duchies,  etc.,  which  make  up  the 
German  federation  have  all  double  legislatures.  Japan, 
in  reconstructing  its  government  in  the  light  of  Eu- 
ropean experience  in  1889,  deliberately  set  up  a  bi- 
cameral system. 

The  objections,  indeed,  against  a  unicameral  system 
are  of  overwhelming  force.  "  Of  all  the  forms  of  gov- 
ernment which  are  possible  among  mankind,"  writes 
the  distinguished  historian  W.  E.  II.  Lecky, "  I  do  not 
know  of  any  which  is  likely  to  be  worse  than  the  gov- 


THE  LEGISLATURE  lei 

ernment  of  a  single  omQipotent  democratic  chamber."  > 
Mr.  Lecky  undoubtedly  states  the  case  too  strongly. 
The  fact  remains,  however,  that  the  unicameral  legisla- 
ture has  been  tried  and  found  wanting.  A  single  legis- 
lative house,  unchecked  by  the  revising  power  of  an- 
other chamber  associated  with  it,  proves  itself  rash  and 
irresponsible;  it  is  too  much  exposed  to  the  influence 
of  the  moment;  it  is  swayed  by  emotion,  by  passion,  by 
the  influence  of  oratory ;  it  is  liable  to  a  sudden  access 
of  extravagance  or  of  retrenchment.   But  quite  apart 
from  these  more  or  less  psychological  arguments,  there 
are  other  practical  objections  to  a  single  legislature. 
Elected  (in  most  cases)  all  at  the  same  time,  its  mem- 
bers represent  the  opinions  of  the  community  at  a  par- 
ticular moment  and  on  particular  issues.   But  the  lapse 
of  time  and  the  appearance  of  new  public  questions 
may  render  a  legislature  such  as  this  quite  out  of  har- 
mony with  public  opinion  long  before  its  term  has 
expired.    A  somewhat  natural  confusion  of  thought 
tended  in  the  past  to  confound  the  existence  of  a  single 
legislative  chamber  with  the  principle  of  popular  sove- 
reignty, as  if  the  rule  of  the  people  would  not  allow  of 
the  existence  of  a  second  house.  Such  a  confusion  arose 
from  the  historical  fact  that  in  its  origin  the  British 
House  of  Lords  was  an  aristocratic  institution.   As  a 
consequence  of  this,  the  democrats  of  the  French  Rev- 
olution adopted  (1791)  a  legislature  of  a  single  house; 
the  proposal  to  unite  it  with  an  upper  chamber  was 
rejected  in  the  Constituent  Assembly  as  savoring  of 
aristocratic  ideas.   The  same  error  was  committed  in 
1848  in  the  constitution  of  the  second  French  republic. 

*  Democracy  and  Liberty. 


i 


162      THE  STRUCTURE  OF  THE  GOVERNMENT 

The  abortive  German  parliament  of  1848  consisted  of 
a  single  house.    Even  in  the  United  States  unicameral 
legislatHTBs  have  been  tried.  Georgia  and  Pennsylvania 
in  1790,  and  Vermont  in  1836,  successively  abandoned 
the  system  in  favor  of  the  now  universal  double  legis- 
latures.   The  idea  that  the  existence  of  a  second  branch 
of  the  legislature  is  not  compatible  with  popular  sove- 
reignty is  indeed  purely  fuUacious.     The  two  houses 
may  each  of  them  draw  their  power  from  the  people, 
although  elected  for  different  terms  and  by  different 
districts.   The  division  between  the  two  need  not  in 
any  way  imply  the  existence  of  caste,  or  follow  the  line 
0i  the  social  stratification  af  society.   The  senates  of 
the  United  States  and  France  are  obvious  illustrations. 
3.  Composition  of  Upper  Houses.  Granted  the 
need  of  the  existence  of  an  upper  house,  the  next  point 
to  be  considered  *»  the  manner  of  its  composition.    It 
may  be   here   incidentally  mentioned   liiat   the   term 
"  upper  house,"  familiarly  used  to  refer  to  a  particular 
part  of  the  legislature,  is  of  course  at  the  present  day 
a  misnomer.    In  the  matter  of  constitutional  power  the 
so-called  upper  house  is  in  nearly  all  cases  the  weaker 
of  the  two.    TIm?  terra  is  i.ierely  a  historic  one ;  for  lack 
of  a  better,  it  is  still  convenient  to  retain  its  use.   The 
composition  of  an  upper  houiw!  may  be  based  on  the 
principles  of  hereditary  office,  of  appointment,  of  elec- 
tion, or  on  a  combination  of  these.    Let  us  consider 
these  different  methods  in  turn.    The  hereditary  prin- 
ciple as  applied  to  the  political  constructioii  of  the 
future  need  not  be  taken  seriously.    It  is  not  probable 
that  any  civilized  community,  not  already  having  a 
hereditary  legislature,  will  deliberately  bring  one  into 


THE  LEGMLATURE 


163 


being.   It  is  true  that  the  priw-iple  was  used  to  some 
extent  in  the  creation  of  the  ILmse  of  Lords  in  Japan 
(1889),  but  rather  as  a  reeognitio®  of  social  and  politi- 
cal differences  already  existing  liian  as  a  creation  of 
new  ones.    "  The  idea  of  bereditarv*  legislators,"  wrote 
Thomas  Paine  in  his  "  Hi^its  of  Man "'  (1791),  "is  as 
inconsistent  as  that  of  i*ereditary  judges,  or  hereditary 
juries,  and  as  absurd  as  an  hereditary  mathematician, 
or  an  here<litary  wise  man,  and  as  ridieulons  as  an' 
hereditary  poet-laureate."    It  is  one  thing,  hcmever,  to 
object  to  the  hereditary  principif  is  the  cowitmction  of 
a  new  legislature,  and  another  to  demand  its  abolition 
where  it  already  exists.     In  many  eouutrie«  it  ha»  had 
its  origin  in  the  historic  evolution  of  the  goveraraent,  it 
corresponds  to  the  social  distinctions  which  exist  as  an 
undeniable  fact  in  the  structure  of  the  community,  and  it 
operates  on  the  whole  fairly  well.    Such  is  undoubtedly 
the  row  with  the  foitish  House  of  Lords.    There  is  at 
present  no  very  intense  opposition  to  the  continued  ex- 
istence of  the  house:  true,  the  radicals  and  the  socialists 
demand  its  abolition,  and  many  liberals,  such  as  Lord 
Rosebery  and  Mr.  Gladstone,  have  threatened  it  with 
reform.    But  the  opposition  to  it  from  the  liberals  has 
arisen  rather  from  the  fact  that  the  House  of  Lords  is 
overwhelmingly  and  hopelessly  conservative  than  from 
repugnance  to  the  nature  of  its  structure. 

The  British  Ihmm-  of  Lords  is  based,  indeed,  on  the 
hereditary  principle  to  a  larger  extent  than  any  exist- 
ing legislature.  It  contains  in  all  about  six  hundred 
members  (the  number  varying  through  deaths  and  new 
creations  of  peerages).  Of  these  only  four  are  mem- 
btrs  appointed  for  life,  —  the  four  eminent  jurists  wfao 


Iti 


'0 


f ' 


164      THE  STWJCTURE  OF  THE  GOVEBNBCENT 

are  created  lord*  of  appeal,  to  supply  the  House  with 
proper   legal   knowledge  when   sitting   as  a  court,  — 
twenty-six  are  archbishops  and  bishops  of  the  Estab- 
lished Church,  sixteen  are  elected  by  the  Scotch  peers 
from  among  their  number,  twenty-eight  are  elected  by 
the  Irish  peers,  ami  the  res*  are  the  members  of  the 
peerage  of  the  United  Kingiiom.    The  creatioo  of  a 
peerage  carries  with  it  tlie  kereditary  right  to  a  seat 
in  the  House  of  Lord«,  nor  has  the  crown  the  power  to 
make  life  appointments  other  than  the  four  n»entio«d 
above.    The  Continental  legisktwpes  wLiefa  make  use 
of  the  hereditary  principle  apply  it  'only  m  a  partial 
degree  to  the  composition  of  the  upjper  hoose.    Aloiig 
with  the  princes  of  the  blood  and  the  hereditary  mem- 
bers, there  are  included  a  large  niMnber  of  members 
appointed  by  the  crown  for  life  ooly.   This  is  the  case 
with  Prussia,  Austria,   Hungary,  and  Spain.    But  of 
these  it  is  only  in  Hungary  that  the  hereditary  peers 
form  a  majority  of  the  house.    In  Spain  and  Austria 
a  representation  is  also  giveu  to  the  Koman  Catholic 
Church ;  in  Hungary  the  Greek,  Protestant,  and  Ro- 
man Catholic  churches  are  all  represented  in  the  upper 
house ;  the  clerical  representation  is  in  all  cases  very 
much  in  (^  minority.   The  Prussian  House  of  Lords 
includes  a  number  of  elected  members  representing  the 
iand-«WB«rs,  together  with  representatives  of  the  uni- 
versities, the  mayors  of  towns  of  over  fifty  thousand 
people,  otc.    Spain  has  also  a  large  number  of  elected 
"  senators,"  representing  the  commercial  and  provincial 
states,  the  universities,  etc.    It  is  to  be  observed  that 
even  in  cases  where  the  hereditary  seats  are  deliber- 
ately granted  to  the  nobles  under  a  modern  constifai- 


THE  LEGISLATURE  105 

tioo  (as  in  Prussia,  1850,  Spain,  1876),  thoy  really 
represent  a  .jontinuatiun  of  the  peculiar  civil  aiul  jk). 
litical  privileges  (rights  of  local  government,  feudal 
dues,  immunity  from  taxes,  etc.)  formerly  enjoyed  by 
the  nobles,  or  a  compensation  for  the  loss  of  the  same. 
The  hereditary  portion  of  the  legislature  is  thus  every- 
where  to  be  regarded  only  as  a  survival  of  the  past. 
Tkere  are  no  hereditary  members  in  the  upper  houses 
of  France,  Switzeiiind,  the  Netherlands,  Denmark, 
Belgium,  Norway,  Sweden,  Italy,  excepting  only,  in 
the  latter  case,  the  princes  of  the  royal  family. 

In  many  legislatures  the  seats  in  the  upper  house, 
or  at  any  rate  in  a  part  of  it,  are  neither  held  by  a 
hereditary  tenure  nor  filled  by  election.    The  members 
are  appointed  to  their   office,  the   nominations  being 
made  almost  invariably  by  the  executive  government. 
Such  a  system,  though  at  first  sight  rt-pugnant  to  the 
idea  of  popular  government,  has  a  great  deal  in  its  favor. 
Exp«ience  has  shown  that  the  process  of  popular  elec- 
tion does  not  always  result  in  the  selection  of  the  ablest 
and  most  upright  men  of  the  country.    Election  is  apt 
to  favor  the  candidates  who  possess  in  a  high  degree 
the  more  popular  arts,  who  have  :i  readiness,  or  even 
a  reatly  buffoonery  in  speech,  who  are  not  sensitive  to 
political  abuse,  and  who  have  a  reputation  (military, 
for  example)  calculated  to  appeal  to  the  imagination 
of    the  crowd.    It   does   not   follow  that  these   men, 
when  elected,  are  the  best  suite.!  for   the  legislative 
office.    There  are    in   every  comnmnity  n.any  men  of 
very  great  talent,  conspicuous   perhaps  in  science  or 
literature,  who  would  never  be  elected  at  the  polls,  who 
would  probably  hesitate  to  offer  themselves  as  candi- 


P» 


i 


\i 


Ill'" : 


>     d 


166      THE  STRUCTURE  OF  THE  GOVERNMENT 

dates,  and  who  nevertheless  are  admirably  fitted  both 
by  their  intellect  and  their  character  for  a  seat  in  the 
legislature.   The  system  of  appointment  renders  it  pos- 
sible, in  theory  at  least,  for  men  of  this  class  to  be 
selected.   This  is  the  principle  that  is  aimed  at  in  the 
nominations  to  the  senate  of  Italy,  where  the  condition 
obtains  that  the  person  nominated  must  either  have 
filled  a  high  office,  or  have  acquired  fame  in  literature, 
science,  or  some  other  pursuit  tending  to  the  benefit  of 
the  nation.   Many  of  the  Continental  legislatures,  as  al- 
ready seen,  admit  of  a  partial  construction  of  the  upper 
house  on  this  plan.    The  system  of  nomination  is  seen 
in  its  entirety  in  the  senate  of  the  kingdom  of  Italy 
and   in   the  senate  of   the  Dominion  of   Canada.   In 
Italy  all  the  senators,  exclusive  of  the  members  of  the 
royal  family,  are  nominated  for  life  by  the  king,  and 
are  selected  out  of   the  following   classes,  —  bishops, 
high  officials,  members  of  the  lower  house  after  three 
terms  of  service,  members  of  the  Royal  Academy  of 
Science,  those  who  pay  six  hundred  dollars  a  year  or 
more  in  taxes,  and  men  who  have  benefited  the  nation 
in  literature,  art,  etc.    In  Canada  the  senate  is  com- 
pose«l  of  members  nominated  for  life  by  summons  of 
tlie  t  lovernor  General,  the  total  number  and  the  num- 
ber from  each  province  being  limited.   Experience  has 
unfortunately  shown  that  nominated  senates  are  bet- 
ter in  theory  than  in  fact.    The  difficulty  encountered 
in  practice  is  that,  whatever  may  be  the  nominal  con- 
stitutional power  of  such  a  senate,  it  is  in  reality  un- 
able to  act  as  a  counterbalancing  force  to  the  house 
elected  by  the  people.   The  senate  of  Italy  is  a  feeble 
bodv,  and  can  offer  no  real  opposition  to  the  Chamber 


THE  LEGISLATURE 


167 


of  Deputies.  In  Canada  also  the  parliamentary  life 
and  parliamentary  power  are  centred  in  the  House  of 
Commons. 

It  remains  to  consider  the  system  of  election  as  ap- 
plied to  the  composition  of  upper  houses.  This  is  the 
method  used,  either  in  direct  or  indirect  form,  in  the 
United  States,  both  in  the  federal  and  state  govern- 
ments, in  Mexico,  Cuba,  and  the  other  Latin  American 
republics,  in  France,  Belgium,  and  the  commonwealth 
of  Australia.  The  difiiculty  encountered  here  at  the 
outset  is  the  danger  of  making  the  upper  house  a  mere 
reduplication  of  the  lower,  which  would  serve  but  little 
purpose,  and  might  lead  to  a  chronic  constitutional 
deadlock.  Various  means  are  taken  to  overcome  this 
difficulty.  In  the  first  place,  in  a  federal  government, 
especially  since  the  example  set  by  the  United  States 
in  1787,  the  problem  may  be  said  to  solve  itself :  the 
upper  house  may  be  made  especially  representative  of 
the  units  of  the  federation,  the  lower  house  may  repre- 
sent the  people  at  large  on  a  basis  of  population.  Thus 
there  are  in  the  United  States  two  senators  for  each 
state,  in  Cuba  four  senators  for  each ;  the  senate  of 
Brazil  has  three  from  each  state,  and  the  Australian 
senate  is  similarly  composed.  In  the  German  federal 
government  the  constituent  parts  of  the  federation  are 
represented  in  the  Bundusrath,  not  exactly  on  a  foot- 
ing of  equality,  nor  yet  in  proportion  to  population ; 
even  the  smallest  have  one  vote  each,  and  Prussia,  the 
largest,  has  only  seventeen  votes.  In  all  these  cases 
the  representation  in  the  lower  house  is  according  to 
population.  This  is  an  extremely  useful  device,  as  it 
renders  a  federation  possible  between  units  of  differ* 


I 


I 


/  ' 


16B     THE  STRUCTURE  OF  THE  GOVERNMENT 

ent  BJzes,  the  smaller  of  which  would  be  too  jealous  of 
the  larger  to  enter  a  union  on  a  basis  of  representa- 
tion  purely  proportionate  to  numbers,  while  the  larger 
states  would  be  unwilling  to  accept  a  federation  on 
terms  of  complete  equality  with  the  smaller  ones. 

A  further  method  of  distinguishing  the  two  houses 
is  found  in  varying  the  system  of  election  and  adopt- 
ing a  direct  election  for  the  lower  house,  and  indirect 
for  the  upper.   This  is  best  seen  in  the  case  of  France. 
The  Chamber  of  Deputies  is  elected  by  direct  universal 
suffrage  from  districts  of  (approximately)  equal  pop- 
ulation.   The  election  of   the  senate  is  iudirect,  and 
is  nmde  by  an  "  electoral  college,"  in  each  department 
of  France,  consisting  of  the  deputies,  councilors-gen- 
eral and  district  councilors  (members  of  the  councils 
for  local  government),  and  representatives  from  the 
municipal  council  of  every  commune  :  the  latter  class 
form  a  large  majority  of  the  total  college.   The  origi- 
nal intention  was  to  make  the  senate  especially  repre- 
sentative of  the  organic  life  of  the  commune,  or  parish, 
while  the  deputies  should  represent  the  nation  at  large. 
Indirect  election  is  also   used  in  the  United  States, 
where  the  United  States  senators  are  elected  by  the 
state  legislatures.    In  the  state  governments  the  sena- 
tors are  elected  by  the  people,  the   election   district 
being,  however,  different  from  that  used  for  elections 
to  the  Assembly.   In  addition  to  the  difference  in  the 
manner  of  elections,  a  differentiation  can  be  mad"  by 
the  use  of   different  electoral   districts   for   the   two 
houses,  as   already  indicated,   by  adopting   terms   of 
office  of  different  length,  and  by  the  system  of  partial 
renewal.   For  example,  a  United  States  senator  sits 


THE  LEGISLATURE  leo 

for  six  yeaw,  a  member  of  the  House  of  Representa- 
tives  only  for  two;  in  France,  while  the  deputies  have  a 
four  years'  term,  a  senator  sits  for  nine  years.  Simi- 
larly in  the  United  States,  one  third  of  the  Senate  is 
renewed  every  two  years  ;  in  France  and  in  the  Nether- 
lands,  one  third  of  the  upper  house  is  renewed  every 
three  years.  This  method  of  partial  renewal  is  of  par- 
ticular efficacy  and  importance.  It  lends  a  character 
of  permanency  and  stability  to  the  upiwr  house,  which 
offsets  the  tendency  of  the  lower  one  to  a  too  complete 
change  of  membership  and  of  sentiment  as  the  result 
of  a  general  election 

4.  Diatribntion  of  Power  between  the  Two 
Houses.  So  much  for  the  question  of  the  composition 
of  the  two  houses ;  let  us  turn  now  to  consider  the  rel- 
ative degree  of  power  to  be  intrusted  to  them.  The 
usual  practice  is  that  the  two  houses  are,  in  almost  all 
matters  of  legislation,  equal  and  ciiordinate ;  either 
house  may  originate  a  bill,  and  no  bill  thus  originated 
can  become  law  without  the  consent  of  the  other  house. 
Either  house,  too,  may  propose  amendments  to  a  bill, 
which  will  only  become  valid  by  receiving  the  consent 
of  the  other.  To  this  general  rule  there  is  one  most 
notable  exception.  In  the  case  of  bills  referring  to  the 
raising  and  spending  of  money,  the  powers  of  the  uppor 
house  in  most  of  the  chief  states  of  tiie  world  are  more 
or  less  limited.  Fortius  different  reasons  are  assigned, 
in  part  historical,  in  part  rational.  Historically  we 
may  consider  this  to  have  come  about  in  imitation  of 
the  relation  existing  between  the  House  of  Lords  and 
the  Commons  in  England,  where  the  power  of  the  purse 
ever  since  the  fourteenth  century  has  been  vested  ex- 


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170     THE  STRUCTURE  OF  THE  GOVERNMEKT 
olusively  in  the  oommoiui.'  Bat  it  hardly  leeini  correct 
to  regard  this  almoat  universal  restriction  on  the  power 
of   upper  houses  as  merely  an  accidental  adaptation. 
There  seems  excellent  reason  for  it  as  well.    In  the  case 
of  most  of  the  bills  intrwluced  in  a  legislature  no  great 
harm  ensues  if  the  proposals  of  one  house  are  rejected 
by  the  other ;  matters  merely  remain  wliere  they  were 
before.   But  in  the  matter  of  money  bills  the  case  is 
different:  if  no  bill  is  passed  for  the  raising  and  spend- 
ing of  money  the  public  service  will  come  to  a  full  stop. 
It  therefore  seems  wiser  to  make  the  wishes  of   one 
house  more  or  less  decisive  in  the  matter;  and  of  tlie 
two,  the  house  more  directly  and  proportionately  repre- 
senting the  people  appears  to  be  the  natural  one  to  in- 
trust  with  this  power.  The  disability  thus  laid  on  the 
upper  house  in  matters  of  Bnance  varies  in  different  legifr 
latures.   It  is  most  complete  in  the  case  of  the  British 
House  of  Lords.  This  body, by  the  custom  of  theconstitu- 
tion,  and  in  accordance  with  the  Parliament  Act  of  1911, 
has  no  power  to  originate,  amend,  or  reject  a  bill  for  the 
raising  or  spending  of  money.   Other  houses,  as  is  the 
case  with  the  House  of  Lords  in  Prussia,  and  the  first 
chamber  in  the  Netherlands,  whUe  forbidden  to  originate 
or  amend  money  bills,  are  empowered  to  reject  them  en 
bloc.  Franceoffers  adoubtf  ul  case;  the  senate  isforbidden 
to  originate  measures  of  finance  and  has  certainly  power 
to  reject  them,  but  the  question  of  its  right  to  amend  is  a 
constitutional  point  not  yet  clearly  settled.'  The  Senate 
of  the  United  States  represents  a  higher  step  in  the  as- 

1  TMwell-Lanpnead,  Constitutioncd  History,  chap.  viii. 
«  Lowell.  Government  and  Parties;  Simouet.  JVaiU  mmentaite  d* 
Droit  PMic. 


THE  LEGISLATURE  171 

oending  series  of  powers.  "  All  bills  for  raising  revenue," 
says  the  Constitution  (art.  i,  §  7),  "  hIiuII  originato  in 
the  Hnsjse  of  Representatives,  but  the  Senate  niny  pro- 
pose  or  concur  with  amendments  as  on  other  hilln."  In 
reality  this  amending  jKiwer  is  used  by  the  Senate  with 
such  latitude  as  to  render  tlie  two  houses  in  their  legis- 
lative capacity  what  Mr.  Bryce  has  called  '•  really  equal 
and  0(M"trdinate."  In  a  few  cases,  in  the  federal  lesii«la- 
ture  of  the  German  Empire  and  in  Switzerland,  the  two 
houdes  are  legally  on  a  footing  of  equality  in  regard 
to  money  bills.  In  Austria  an  ingenious  expedient  is 
added  for  preventing  the  disagreement  of  the  two  houses 
from  stopping  the  wheels  of  government.  It  is  part  of 
the  fundamental  law  that  if  the  two  houses,  even  after 
consultation,  cau  reach  no  agreement  in  regard  to  a 
financial  measure,  then  the  lower  sum  of  money  voted 
(by  either  house)  is  considered  as  granted. 

In  all  matters  other  than  money  bills  it  is  usual  that 
the  two  houses  are  on  a  footing  of  equality  as  far  as 
the  law  of  tliu  constitution  is  concerned.  But  in  practice 
it  generally  happens  that  tlie  lower  house  is  decidetlly 
the  "  predominant  partner  ;  "  in  the  case  of  a  conflict 
between  the  two,  public  opinion  is  generally  in  favor  of 
the  house  which  more  immediately  stands  for  the  vote 
of  the  people,  aiul  circumscribes  to  a  large  extent  the 
resistance  that  can  be  offered  by  the  upper  house  to  tli<* 
more  jwpnlar  Ixxly.  This  is  the  explanation  of  the  rel- 
atively feeble  power  of  the  senates  of  France.  Italy, 
and  Canada.  The  cases  of  the  German  Bundesratli 
and  the  American  Senate,  which  enjoy  a  jwwer  practi. 
cally  greater  than  that  of  the  lower  house,  are  quite 
exceptional.   The  Senate  of  the  United  States  owes  its 


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172      THE  STRUCTURE  OF  THE  GOVERNMENT     . 

extensive  power  partly  to  its  federal  character,  by  virtue 
of  which  it  represents  the  states  in  their  separate  ca- 
pacity, partly  to  the  length  of  the  senatorial  term,  and 
in  part  also  to  its  historical  antecedents,  and  the  tra- 
ditions of  political  weight  and  stability  which  it  has 
acquired.  The  constitutional  relations  existing  by  the 
custom  of  the  country  between  the  Lords  and  Commons 
of  the  United  Kingdom  are  quite  unique.  It  is  only 
to  be  expected  that  the  House  of  Lords,  no  part  of 
which  is  elected  by  the  people  either  directly  or  in- 
directly, should  be  able  to  offer  only  a  limited  resistance 
to  the  Commons  even  in  matters  that  are  not  financial. 
The  constitutional  relation  of  the  two  houses,  prior  to 
recent  developments,  is  thus  stated  by  Mr.  Dicey  :^ 
*'  If  there  is  a  difference  of  opinion  between  the  House 
of  Lords  and  the  House  of  Commons,  the  House  of 
Lords  ought  at, some  point  (not  definitely  fixed)  to  give 
way ;  and  should  the  Peers  not  yield,  and  the  House 
of  Commons  continue  to  enjoy  the  confidence  of  the 
country,  it  becomes  the  duty  of  the  Crown,  or  of  its 
responsible  advisers,  to  create,  or  threaten  to  create, 
enough  new  Peers  to  override  the  opposition  of  the 
House  of  Lords,  and  thus  restore  harmony  between  the 
two  branches  of  the  legislature."  By  the  "  confidence 
of  the  country  "  is  meant  the  endorsation  of  the  conduct 
of  the  Commons,  or  more  correctly  of  the  majority  in 
the  Commons,  by  the  people  voting  in  a  general  election 
on  the  issue  involved.  This  constitutional  relation  is 
sometimes  briefly  stated  by  saying  that  the  Lords  have 
no  right  to  oppose  the  Commons  on  the  issue  on  which 
the  Commons  were  elected.  The  precedent  involved  was 
established  by  the  passage  of  the  Refoim  Bill  of  1832. 
^  Law  of  the  Constitution. 


THE  LEGISLATURE  ITS 

The  Lords   insisted  on   opposing  the  measure   even 
though  a  dissolution  of  Parliament  resulted  in  the  elec- 
tion of  a  new  House  of  Commons  overwhelmingly  in 
support  of  parliamentary  reform.   The  written  threat 
of  the  king  (William  IV)  to  create  peers  in  favor  of 
the  bill,  forced  the  Lords  to  withdraw  their  opposition. 
In  accordance  with  this  precedent  the  Lords  have  found 
themselves  several  times  conipelled  to  waive  their  legal 
right  of  resistance  to  the  Commons.    The  bills  for  the 
repeal  of  the  corn  laws  (1846)  and  for  the  disestablish- 
ment of  the  Irish  Church  (1869)  are  cases  in  point. 
That  the  precedent  had  not  altogether  shattered  the 
constitutional  power  of  the  Lords  was  seen  in  their  rejec- 
tion  of  Mr.  Gladstone's  Home  Rule  Bill  (1893).  In  spite 
of  the  fact  that  they  were  opposing  a  House  of  Com- 
mons elected  directly  on  the  question  of  home  rule,  the 
Lords  threw  out  the  bill ;  it  was  argued  in  support  of 
their  action  that  though  the  electorate  had  spoken  in 
favor  of  home  rule,  they  had  not  indorsed  this  partic- 
ular bill,  which  had  not  yet  been  made  public  at  the 
time  of  the  election.  A  further  argument  was  found  in 
the  fact  that  the  bill    had  been  forced  through   the 
Commons  by  means  of  the  closure,  which  had  perhaps 
unduly  abbreviated  debate. 

Within  recent  years  the  constitutional  relation  of  the 
two  houses  of  the  British  legislature  haa  undergone  a 
further  readjustment.  The  House  of  Lords  rejected 
the  Finance,  Bill  passed  by  the  Commons  in  1909. 
Certain  portions  of  the  bill,  as  notably,  the  introduction 
of  a  tax  on  the  increase  of  landvalues,  were  regarded 
by  the  majority  of  the  Lords  as  social  rather  than  fin- 
ancial legislation  and  as  subject  therefore  to  *':e  free 


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174     THE  STRUCTURE  OF  THE  GOVERNMENT 

action  of  the  House.  The  rejection  of  the  bill  led  to  a 

prolonged  constitutional  crisis  which  resulted  in  the 

passage  of  the  Parliament  Act  of  1911  (1  and  2  Geo. 

V.  Ch.  13).   Under  this  statute  any  money  bill  which 

the  House  of  Lords  refuses  to  pass  in  the  form  in  which 

it  has  come  up  from  the  Commons,  may  become  law  by 

the  signification  of  the  royal  assent.   The  decision  as 

to  what  is  or  what  is  not  a  money  bill  rests  with  the 

speaker  of  the  House  of  Commons.   Public  bills  other 

than  money  bills  or  a  bill  extending  the  maximum 

duration  of  parliament  may  also  become  law  without 

the  consent  of  the  House  of  Lords,  provided  that  they 

have  been  passed  by  the  Commons  in  three  successive 

sessions  (of  the  same  or  of  consecutive  parliaments), 

and  provided  also  that  two  years  have  elapsed  between 

the  second  reading  in  the  first  session  of  the  House  of 

Commons  and  the  third  reading  in  the  third  session. 

The  bills  in  question  must  be  sent  up  to  the  House  of 

Lords  at  least  one  month  before  the  end  of  the  session. 

The  same  act  limits  the  duration  of  parliament  to  five 

years. 

Whatever  arrangements  may  exist,  either  legal  or 
customary,  there  always  remains  in  the  background  the 
danger  of  conflict  or  even  of  an  actual  deadlock  between 
the  two  houses.  In  most  legislatures,  as  for  instance  in 
the  Congress  of  the  United  States  and  in  the  Parlia- 
ment of  the  United  Kingdom,  this  danger  is  lessened 
by  the  system  of  conferences  between  representatives 
of  each  house.  In  the  Congress,  when  the  houses  are 
unable  to  agree  over  amendments,  three  members  of 
the  Senate  are  appointed  to  confer  with  three  members 
of  the  House  of  Representatives,  with  a  view  to  arran- 


*.'■ 


THE  LEGISLATURE  175 

ging  a  compromise.    Although  serious  differences  of 
opinion  have  often  existed  between  the  two  Louses  of 
Congress,  the  possibility  of  an  actual  deadlock  bringing 
the  legislative  machinery  to  a  standstill  is  not  one  of 
the  special  dangers  in  the  American  system.    Beyond 
the  plan  of  committees  of  conference  there  is  no  legal 
machinery  for  forcing  an  agreement  between  the  two 
houses.    The  case  is  quite  different  with  the  newly 
made  constitution  of  the  commonwealth  of  Australia. 
Australian  legislatures,  especially  the  legislatures  of 
Victoria,  have   experienced  the  very  serious  dangers 
that  may  be  threatened  by  the  obstinate  disagreement 
of  the  upper  and  lower  house."    As  a  result  of  the 
difficulties  that  have  thus  arisen,  the  new  constitution 
of  the  commonwealth  contains  in  consequence  provi- 
sions that  are  intended  to  render  impossible  a  complete 
deadlock   in  the  federal   legislature.     The    Governor 
General   is    empowered    in  the   event   of  the    House 
presenting  and  re-presenting  a  bill,  and  the  Senate  per- 
sistently  rejecting  it,  to  dissolve  both  houses  simulta- 
neously,   if  after  a  new  election  the  same  situation 
persists,  the  governor  may  convene  a  joint  sitting,  the 
vote  in  which  is  final.^ 

5.  Direct  Legislation;  the  Initiative  and  the 
Referendum.  As  a  conclusion  to  our  discussion  of 
the  legislature  and  the  legislative  process,  we  may 
briefly  advert  to  what  is  called  direct  legislation,  or  the 
making  o:'  s  by  means  of  tlie  action  of  the  people 
themselves.   That  the  whole  of  the  people,  or  at  any 

1  For  an  account  of  the  experience  ot  Victoria  in  this  connection, 
and  the  political  crisis  of  1877,  see  Edward  Jenks,  Government  of  Vic 
toria,  part  iv,  chap,  zxziii. 

'  Commonwealth  Act,  §  57. 


i 


176      THE  STRUCTURE  OF  THE  GOVERNMENT 


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rate  of  the  voters,  should  participate  in  the  process  of 
legislation  seems  in  a  sense  the  embodiment  of  the  idea 
of  democratic  self-government.  Rousseau  regarded  it 
as  the  only  true  expression  of  popular  sovereignty.  In 
some  form  or  other  it  has  been  known  since  the  earliest 
historical  times.  At  Athens  there  existed  the  Ecclesia, 
an  assembly  of  all  the  free  citizens,  erected  by  Solon 
in  the  sixth  century  B.  C.  into  an  organ  of  general  po- 
litical control.  In  it  the  citizens  decided  on  questions 
of  peace  and  war,  and  voted  on  matters  laid  before 
them  by  the  Courcil  of  Four  Hundred.  The  Komans 
also  had  their  Comitia  Trihuta.,  or  meeting  of  the  peo- 
ple by  tribes,  which  became  in  the  latter  days  of  the 
republic  a  lawmaking  assembly.  In  the  smaller  can- 
tons of  Switzerland  the  Landesgemeinde,  or  gathering 
of  the  people,  has  acted  from  time  immemorial  as  a 
legislative  body.  Such  organs  of  government  were  ren- 
dered possible  in  the  city  states  of  the  classical  world, 
and  in  the  cantons  of  Switzerland,  by  reason  of  their 
restricted  territorial  extent.  In  the  larger  states  of  the 
world  an  actual  gathering  of  the  people  is  a  physical 
impossibility.  The  sovereignty  of  the  people  has  worked 
itself  out  by  means  of  representative  assemblies.  But 
sii,  the  present  day  the  growth  of  rapid  communication 
by  post  and  telegraph  renders  it  possible  to  have  re- 
course to  some  extent  to  the  whole  body  of  the  citizens 
in  the  making  of  the  law  ;  the  people  of  a  great  state 
cannot,  it  is  true,  be  all  gathered  together  in  one  place 
in  a  deliberative  capacity,  but  it  is  possible  for  them  all 
at  one  and  the  same  time  to  give  their  vote  upon  any 
measure  proposed.  The  system  of  direct  legislation 
which  ia  thus  rendered  possible  has  been  favored  by 


THE  LEGISLATURE  177 

the  growing  distrust  of  representative  legislatures  which 
19  noticed  in  so  many  democratic  countries  at  the  pre- 
sent  day.   There  is  an  increasing  tendency  to  rely  on 
the  general  will  of  the  whole  people  as  expressed  in 
a  direct  vote.   "The  people,"  says  Professor  Goldwiu 
Smith,  "cannot  be  lobbied,  wheedled,  or  bulldozed; 
the  people  is  not  in  fear  of  its  reelection  if  it  throws 
out  something  supported  by  the  Irish,  the  Prohibition- 
ist, or  the  xMethodist  vote."   As  against  this  contention 
It  may  properly  be  advanced  that  the  making  of  laws 
requires,  like  every  other  task  of  importance,  a  special 
training  and  -xperienee,  and  that  the  interests  of  the 
people  are  really  safer  in  the  hands  of  carefully  chosen 
legislatures   than  when  submitted  to   the  hazards  of 
a  popular  vote.   The  fact  that  in  every  community  a 
large  proportion  of  the  citizens  are  of  necessity  too 
much  absorbed  in  their  own  affairs  to  be  able  to  prop- 
erly  consider  the  public  questions  submitted  to  them,  is 
also  of  considerable  weight.   Rightly  or  wrongly,  how- 
ever, legislation  by  the  people  is  already  used  to  a  con- 
siderable  extent.   It  assumes  several  forms.   Of  these 
the  most  important  is  the  referendum,  or  submission  to 
the  popular  vote  of  a  proposed  measure  or  constitu- 
tional  change  which  becomes  law  if  ratified  by  the  re- 
quired majority.    The  initiative  means  the  legal  right 
of  the  people,  acting  by  petition  and  in  sufficient  num- 
ber, to  cause  a  legislative  measuie  to  be  brought  to  a 
popular  vote.   There  is  finally  what  may  best  be  called 
the  plebiscite,  or  vote  of  the  people  used  merely  as  an 
expression  of  opinion  without  binding  force,  and  in- 
tended  as  a  guide  to  the  policy  of  the  government.    It 
18  in  Switzerland  more  than  anywhere  else  that  direct 


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178      THE  STRUCTURE  OF  THE  GOVERNMENT 

legislation  is  in  use.  Of  the  nineteen  cantons  and  six 
half-cantons  which  form  the  federation,  two  cantons 
and  four  half-cantons  still  preserve  the  immemorial 
Landesgemeindu,  or  mass  meeting,  already  referred  to. 
In  Uri,  for  example  (of  which  the  total  population  is 
22,055),  the  people  meet  once  a  year  in  a  large  meadow, 
where  they  vote  taxes,  pass  laws,  and  elect  their  execu- 
tive officers  for  the  coming  year.  Even  in  the  cantons 
which  have  representative  legislatures  the  referendum 

—  the  submission  of  the  laws  to  the  vote  of  the  jwople 

—  is  largely  used.  In  about  half  of  them  it  is  "  op- 
tional," employed,  that  is  to  say,  only  when  called  for 
by  petition.  In  all  the  rest  (except  Freiburg)  it  is  "  ob- 
ligatory," and  must  be  used  for  all  legislative  measures 
of  importance.  In  all  the  cantons  changes  in  the  con- 
stitution can  only  be  made  if  ratified  by  the  popular 
Vote.  The  initiative,  or  right  of  the  people  to  intro- 
duce laws  by  petition,  is  of  more  modern  creation,  hav- 
ing been  first  introduced  into  the  constitutions  of  the 
cantons  in  the  middle  of  the  nineteenth  century.  It  is 
permissible  at  present  in  all  but  three  of  the  cantons 
for  ordinary  measures  of  law,  and  in  all  but  one  for 
constitutional  changes.  In  the  federal  government  of 
Switzerland  the  referendum  is  compulsory  for  an 
amendment  of  the  constitution.  There  is  also  an  o})- 
tional  referendum,  requiring  the  submission  of  ordinary 
laws  to  the  people  if  called  for  by  thirty  thousand  citi- 
zens or  eight  cantons.  The  initiative  in  the  shape  of  a 
proposal  supported  by  fifty  thousand  voters  also  exists 
in  the  federal  government ;  though  nominally  admissible 
only  on  constitutional  amendments  it  can  in  practice  be 
applied  to  any  measure  by  giving  it  the  form  of  a  change 


THE  LEGISLATURE  179 

in  the  constitution.  That  this  gystem  thus  established 
18  of  great  practical  importance  in  the  government  of 
bwitzerland  is  seen  from  the  fact  that  between  April 
1874,  and  October,  189G,  no  less  than  thirty-eight  pop! 
ular  votes  were  taken.  Unfortunately  it  is  impossible 
to  draw  any  general  conclusion  as  to  the  utility  of 
direct  legislation  from  the  experience  of  Switzerland 
as  Its  critics,  both  in  and  out  of  that  country,  are  much 
divided  in  opinion.* 

In  the  United  States,  direct  legislation,  though  not 
always  referred  to  by  that  name,  exists  to  a  consider- 
able extent.   There  is  in  the  first  place  a  historic  form 
of  It  m  the  shape  of  the  New  England  "town  meet- 
ing,     or  assembly  of  the  electors  of   the   township, 
ihis  IS  almost  a  counterpart  of  the  Landesgemeinde  of 
Switzerland.  The  voters  come  together  in  a  mass  meet- 
mg  once  a  year  (and  on  siiecial  occasions  if  called  for 
by  petition)  and  not  only  elect  the  "select  men"  or 
officers  of  the  township,  but  also  vote  on  the  raising  of 
taxes,  the  spetidingof  money,  and  on  other  local  ques- 
tions.    The  t-wn   meeting    is  an   instance   of  direct 
legislation  . "      .        est  type,  inasmuch  as  it  permits  of 
di-,cus8ion  >;  V,         ,  voting  in  the  mass  meeting.^   An- 
other  form    ^         .-c  legislation  is  seen  in  the  ratifica- 
tion by  the  people  of  changes  in  the  Constitution,  a 
system  now  practically  universal  in  the  United  States. 
The  constitutions  of  many  of  the  states  make  a  still 
further  use  of  the  principle.  As  has  already  been  seen, 
the  power  of  the  state  legislature  is  often  restricted  by 

»  The  most  complete  authority  on  the  subject  is  Deploige,  The  Refer, 
endum  m  Switzerland. 

'  ^T  •'«*»"»'«*''  ♦'•«  New  Enjrknd  town  meeting  past  and  pre-nt 
■ee  euke,  Civil  Government  in  the  United  States,  chap.  ii. 


180     THE  STRUCTURE  OF  TRE  GOVERNMENT 


V. 


'    I 


W 


i  '' 


II 

J  -r-  ■ 

■    -' 

mi 

mi 

1 

a  constitutional  provision  requiring  certain  kinds  of 
statutes  to  be  submitted  to  a  popular  vote.  The  con- 
stitution of  Pennsylvania  (1873),  for  example,  declares 
that  '*  no  law  changing  the  location  of  the  capital  of 
the  State  shall  be  valid  until  the  same  be  submitted  to 
the  qualified  electors  of  the  commonwealth  at  a  general 
election,  and  ratified  and  approved  by  them."  ^  Simi- 
lar  provisions  in  regard  to  altering  the  location  of  the 
capital  are  found  in  the  constitution  of  many  other 
states.  In  the  same  way  a  clause  of  the  Iowa  constitu- 
tion of  1846  (adopted  later  in  the  constitutions  of  New 
York,  California,  Illinois,  and  a  number  of  western 
states)  provides  that  laws  for  the  contraction  of  debt 
(with  certain  exceptions)  must  be  submitted  to  the 
people.  In  many  states,  too,  the  raising  of  taxes  be- 
yond a  stipulated  limit  can  only  be  effected  by  means 
of  a  popular  vote.  Of  other  matters  treated  in  this  way 
the  alienation  of  public  property,  the  creation  of  banks, 
and  the  extension  of  the  franchise  to  women  may  be 
cited.  The  popular  votes  by  which  female  suffrage 
was  rejected  in  South  Dakota  (1898),  in  Washington 
(1898),  and  in  Oregon  (1900)  were  of  this  nature. 
Direct  legislation  is  also  found  in  the  form  of  a  "  muni- 
cipal referendum  "  in  which  the  people  of  a  county  or 
town  vote  on  the  question  of  the  location  of  the  county 
seat,  the  contraction  of  a  local  debt,  or  the  adoption  of 
a  city  charter.  This  particular  phase  of  direct  leg- 
islation, whereby  the  making  or  amending  of  city 
charters  is  submitted  to  a  vote  of  the  people  of  the  city, 
is  sometimes  spoken  of  as  municipal  home  rule.  Sev- 
eral states  of  the  Union  have  already  made  extensive 

*  Conatitntion,  art.  iii,  $  28. 


THE  LEGISLATURE  igon 

use  of  this  sygtem.  In  California  an  amendment  of  tl.* 
constitution  (November,  1906)  provided  that  a  peti- 
tion  of  fifteen  per  cent  of  the  voters  can  cause  any 
proposed  charter  amendment  to  be  submitted  to  a  vote 
of  the  people.   In  Oregon  a  cons  ifitional  amenduieiit 
of  1906  gave  to  the  voters  of  evt-ry  city  and  town 
power  to  enact  and  to  amend  the  charters  of  their  mun- 
icipahty.   The  sam^  deveh)pment  is  seen  in  Washington, 
Minnesota,  Colorado,  and  other  states.   The  Michigan 
constitution  of  1908  provides  for  municipal  home  rule. 
Sule  by  side  with  this  is  the  system  of  the  advisory 
direct  vote,  now  widely  adopted  as  an  auxiliary  of  city 
government.    This  vote  is  taken  either  by  virtue  of  a 
general  state  law,  or  by  virtue  of  the  implied  powers 
of  a  city  charter,  or  under  an  enabling  clause  expressly 
inserted  in  a  charter.    Thus  in  Illinois  a  law  of  1901 
provides  that  on  the  petition  of  twenty-five  per  cent  of 
their  number,  an  expression  of  opinion  of  all  the  voters 
shall  be  taken  on  any  municipal  question.   Under  this 
law  expressions  of  opinion  were  taken  in  Chicago  (1902) 
on  the  question  of  direct  nomination  of  city  officials 
on  the  question  (1904)  of  the  popular  election  of  the 
school  board,  and  on  other  matters.    The  Canadian 
provinces  of    British    C      mbia  and    Ontario    have 
adopted,  in  1902  and  19(      respectively,  this  system  of 
an  advisory  expression  of  opinion  on  the  part  of  the 
voters  of  a  city. 

Direct  Legislation  is  carried  still  further  in  certain 
states  of  the  Union  in  the  form  of  a  general  introduc 
tion  of  the  initiative  and  the  referendum.  South  Da- 
kota by  a  constitutional  amenv:.nent  of  1898  provided 
for  the  use  of  the  initiative  and  the  ^  ^feretdum  on  a 


i 


;» 


i' 


180*  THE  STRUCTURE  OF  THE  GOVERNMENT 

petition  of  five  per  cent  of  the  Toters.  Oregon  adopted 
a  state  system  of  initiative  and  referendum  in  1902, 
and  by  an  amendment  of  the  constitution  in  1906  in< 
stituted  also  local  direct  legislation  with  the  applica- 
tion of  a  local  initiative  at  the  request  of  fifteen  ]H.'r 
CfcMt  of  the  voters  of  a  town  or  city,  and  a  refiaenduni 
at  riie  request  of  ten  per  cent.  Montana,  Oklahoma 
(constitution  of  1907),  and  other  states  have  adopted 
direct  legislation  both  in  state  and  nuinicipul  form. 
The  whole  system  is  decidedly  growing  in  favor,  espe- 
cially in  the  western  part  of  the  Union,  and  profits  by 
the  distrust  with  which  the  state  legislatures  are  often 
viewed  by  the  people  at  large.  Direct  legislation  haa 
been  widely  endorsed  in  general  terms  by  various  polit- 
ical parties  and  associations,  especially  those  of  a  rad- 
ical or  progressive  stamp,  in  many  states.  The  Pop- 
ulist party  in  its  national  convention  at  St.  Louis,  in 
1896,  expressed  itself  in  favor  of  the  use  of  both  refer- 
endum and  initiative,  and  has  reasserted  its  advocacy 
of  direct  legislation  at  each  of  its  subsequent  conven- 
tions. Various  state  Democratic  conventions,  for  exam- 
ple those  held  in  Massachusetts,  Rhode  Island,  and 
Nebraska  in  1911,  have  put  themselves  on  record  in 
favor  of  the  initiative  and  referendum. 

Somewhat  similar  in  its  general  nature  to  the  pro- 
gramme  of  direct  leg'slation  is  the  modification  of  the 
tenure  of  office  by  what  is  known  as  the  recall.  Ex- 
pressed in  general  terms  lUh  aystem  means  that  all 
persons  who  hold  office  lut.  .  do  so  only  so  long  as 
their  tenure  of  office  is  sanctioned  by  the  will  of  the 
people;  at  any  time  when  a  majority  of  the  voters  de- 
sire  i^  the  office-holder  is  removed  from  his  functions. 


THE  LEGISLATURE  ,30^ 

The  arguments  for    and  again.t  the  system   .tanJ 
upon  somewhat  the  Haiue  ground  as  those  in  ri-gard  to 
direct  legislation.    In  idealistic  teru.»,  it  is  argued  that 
the  will  of  the  people  ought  to  ho  the  supreme  ,>ower 
and  that  the  recall  offers  a  means  whereby  th!     iti- 
zens  may  at  once  rem<.ve  from  office  those  who  have 
abused   their    trust.    The  system,  it   is    claimed,   af- 
fords  a  ready  weapon  against  political  corruj.tion  and 
the  sinister  influence  of  the  nioney  power.    To  this  it  i» 
Answered,  as  in  the  case  of  direct  legislation,  that  "the 
people    are  neither  all-wise  nor  all-seeing ;  that  the  re- 
call  of  a  conscientious  official  .,-:  y  be  brought  about 
by  a  false  appeal  to  the  passions  or  interests  of  voters 
Ignorant  of  the  facts  and  details  of  the  case ;  that  ^he 
resulting  uncertainty  of  office  renders  the  conscientious 
performance  of  duty  doubly  difficult;  and  that,  far 
from  being  a  protection  against  the  malign  influence 
of  th-)  money  power,  the  recall  introduces  a  new  and 
dangerous  form  of  public  corruption.    It  is  especially 
m  regard  to  the  recall  of  judicial  officials  that  stress  is 
laid  on  these  arguments.   The  work  of  a  judge,  from 
Its  intricate  and  technical  character,  I.  not  a  subject 
upon  which  the  mass  of  the  people  can  pronounce 
Certainty  of  tenure  alone  can  give  to  the  j-dge  the 
opportunity  for  independence  of  mind. 

As  yet,  the  use  of  the  recall,  as  a  phase  of  the  newer 
democracy,  has  not  proceeded  far.  Its  advocates  some-  " 
times  call  attention  to  the  dependence  of  the  British 
and  colonial  cabinets,  from  day  to  day,  on  the  vote  of 
the  lower  house.  But  this  is  hardly  a  case  in  point, 
nor  w  It  proper  to  cite  the  instance  of  the  delegates  of 
tJie  Longiess  of  the  Confederation  (1781-1789)  who 


in 


i 


n 


!>     I- 


V 


180d   THE  STRUCTURE  OF  THE  GOVERNMENT 

were  removable  at  will  by  their  state  governments. 
The  recall,  however,  has  been  actually  established  in 
connection  with  the  administration  of  cities  in  a  num- 
ber of  western  states,  as  Iowa,  Kansas,  California,  and 
Oklahoma.  It  is  especially  used  in  connection  with 
the  form  of  control  known  as  commission  government. 
The  recall  in  the  state  of  Oregon  is  extended  to  the 
judiciary. 

READINGS  SUGGESTED 
Leckjr,  W.  H.,  Democracy  and  Liberty  (1896),  vol.  i,  chap.  iv. 
Low,  S.,  Governance  of  England  (1904). 
Bryce,  J.,  American  Commonwealth  (1889),  vol.  i,  chaps.  i~xx. 

FURTHER  AUTHORITIES 
The  Statesman's  Year  Book  (annual). 
Anson,  Sir  W.,  Law  and  Custom  of  the  Constitution,  part  i  (2d 

edition,  1896). 
Hart,  A.  B.,  Actual  Government  (1903). 
Lowell,  A.  L.,  Governments  and  Parties  in  Continental  Europe 

(1897). 
SImonet,  Traitd  Eldmentaire  de  Droit  Public  et  Administratif 

(3d  edition,  1897). 
Dicey,  A.  V.,  Law  of  the  Constitution  (4th  edition,  1893). 
Macy,  J.,  English  Constitution  (1897). 
Wilson,  W.,  The  State  (2d  edition,  1901). 
Vincent,  J.  M.,  Government  in  Switzerland  (1900). 
Wilson,  W.,  Congressional  Government  (2d  edition,  1901). 
Deploige,  S.,  The  Referendum  in  Switzerland  (translation,  1898), 
Ilbert,  Sir  Courtenay,  Legislative  Methods  and  Forms  (1901). 
Munro,  W.  B.  (editor).  The  Initiative,  Referendum  and  Recall. 

(National  Municipal  League  Series.  1912.) 


W .      i      iii 


CHAPTER  III 


THE  EXECUTIVE 

1.  Concentration  of  Authority  the  first  Requisite  of  the  Executive.-- 
2.  Methods  of  Appointment;  Hereditary  Executives. - 3.  Elective 
Executives. -4.  Presidential  and  Parliamentary  Government. - 
6.  Subordinate  Officials  of  the  Executive;  the  Civil  Service. 

1.  Concentration  of  Authority  the  First  Requi- 
Bite  of  the  Executive.   The  term  executive  is  used 
to  designate  those  officers  of  the  government  whose 
business  it  is  to  "execute  "  or  carry  out  the  law  of  the 
land.   In  the  narrower  sense  it  often  signifies  merely 
the  supreme  head  of  the  administration,  as  the  Presi- 
dent  of  the   United  States,  or  the  same  person  to- 
gether   with  his  chief  subordinates.    Thus   when   we 
speak  of  the  "executive"  of  the  French  Republic,  we 
refer  to  the   president,  or  perhaps  to  the  president 
together  with  the  prime  minister  and  cabinet.   But  the 
word  has  also  a  wider  signification,  in  which  it  means 
the  entire  staff  of  officials,  high  and  low,  who  are  con- 
cerned  with  the  administration  of  public  affairs.   This 
does  not,  of  cour.se,  include  persons  acting  in  a  legisla- 
tive or  judicial  cai)acity,  but  comprises  all  such  jmblic 
servants  as  postmasters,  revenue  officers,  sheriffs,  in- 
spectors,  commissioners,  etc.    Occasionally  even   the 
anny  and  the  navy  are  included  in  this  usage  of  the 
term.   In  the  following  chapter  the  word  executive  will 
be  used  in  the  narrower  sense  except  where  otherwise 
indicated. 


182     THE  STRUCTURE  OF  THE  GOVERNMENT 


I  it 


hi.    :t 


ii' 


The  first  striking  point  to  be  noticed  in  connection 
with  the  executive  heads  of  modern. governments  is 
that,  while  members  of  the  legislature  are  many,  the 
chief  officers  of  the  executive  are  few.  This,  as  has 
been  seen,  arises  from  the  fact  that  the  prime  need  in 
the  executive  or  acting  branch  of  a  government  is 
promptness  of  decision  and  singleness  of  purpose.  That 
this  is  difficult  to  obtain  among  a  number  of  persons 
acting  with  equal  authority  goes  without  saying.  "  One 
bad  general,"  the  Emperor  Napoleon  once  said,  "is 
better  than  two  good  ones." 

It  is  further  to  be  noted  that  to  a  very  great  ex- 
tent executive  authority  —  either  over  the  whole  con- 
duct of  government  or  over  its  subdivisions  —  tends 
to  centre  in  a  single  person.  Thus  in  the  United 
States  the  supreme  administration  lies  in  the  Presi- 
dent, whose  chief  subordinates  are  his  own  creations, 
and  can  be  dismissed  by  him.  In  Great  Britain  the 
virtual  control  of  affairs  is  in  the  hands  of  a  cabinet 
of  fifteen  to  twenty  persons,  one  of  whom  is,  to  a 
large  extent,  dominant  over  the  others.  It  is  not  ne- 
cessary that  any  single  person  should  always  impose 
his  own  ideas  and  his  own  will  upon  the  conduct  of 
public  administration.  But  it  is  essential  that  there 
should  be  some  one  person  who  can  in  the  last  resort 
exercise  a  decisive  and  final  authority.  It  is  one  of  the 
admirable  points  in  the  federal  Constitution  of  the 
United  States  that,  by  virtue  of  his  position  of  com- 
mander-in-chief of  the  army  and  navy,  the  President 
may  become  in  time  of  war  almost  a  dictator.  His 
power  expands  with  the  need  of  strengthening  the 
executive,  and  he  is  able  to  cut  the  Gordian  knot  of 


i;|,. 


THE  EXECUTIVE  153 

legislative  perplexities  by  the  incisive  application  of  a 
single  will.» 

It  appears,  then,  that  there  is  a  strong  presumption 
against  what  is  called  a  "plural  executive,"  or  group 
of  persons  exercising  the  supreme  executive  authority, 
no  one  of  whom  is  superior  in  power  to  the  others, 
buch  a  body  is  able  to  act  only  by  joint  decision.  At 
first  sight  there  appears  a  decided  gain  in  this  system 
m  the  direction  of  maturity  of  judgment  and  mutual 
control  of  the  members  against  any  possible  tyranny 
on  the  part  of  any  of  them.   But  the  necessary  loss  in 
promptness  of  resolution  and  the  danger  of  actual  con- 
flict  of  opinion  in  a  moment  of  crisis,  more  than  offsets 
this  gain.   As  a  matter  of  fact  a  plural  executive  is 
scarcely  able  to  act  at  all  except  by  subdividing  the 
work  to  be  done  and  committing  certain  special  func- 
tions  to  the  care  of  each  of  its  members.   This  was,  for 
example,  the  plan  pursued  by  the  Committee  of  Public 
Safety,  the  joint  executive  of  eleven  members  which 
governed  France  during  the  reign  of  terror,  1793-94  2 
History  offers  many  examples  of  plural  executives,  such 
as  the  dual  kings  at  Sparta  and  the  consuls  at  Rome. 
But  experience  has  been  decidedly  unfavorable  to  such 
a  plan  of  government.   To  this  general  verdict  a  signal 
exception  is  found  in  the  case  of  modern  Switzerland. 
Here  the  supreme  executive  power  is  vested  in  a  board 
of  seven  persons,  the  Bundesrath,  or  federal  council 
elected  for  a  term  of  three  years,  by  the  two  houses  of 

J  Consult  in  this  respect  J.  W.  Bui^ess,  Political  Science  and  Con- 
txtutional  Law,  vol.  ii,  division  iil,  chap.  iv. 

'  Fop  the  division  of  executive  business  among  the  members  of  the 
Comm,  t*e  of  Public  Safety,  .ee  Morso  StepLe.u.,  The  French  Hevoiu. 
Hon,  vol.  iL 


m 


f  I 


II 


184     THE  STRUCTURE  OF  THE  GOVERNMENT 

the  legislature  in  joint  session.  Although  one  of  the 
council  is  nomiTiated  each  year  to  the  titular  dignity  of 
president  of  tlie  Swiss  Confederation,  he  is  in  no  sense 
above  the  others  in  authority.   The  members  act  sever- 
ally as  the  heads  of  the  seven  goverumeiital  depart, 
ments,  though  this  is  for  convenience  only,  and  not 
prescribed  by   the   constitution.     In   their  corporate 
capacity  they  manage  the  general  conduct  of  the  ad- 
ministration.  In  practice  the  system  works  admirably. 
The  members  of  the  council  are  constantly  reelected, 
and  enjoy  what  is  practically  a  permanent  tenure.   But 
this  rather  anomalous  situation  is  partly  to  be  explained 
by  the  fact  that  the  legislature  itself  decides  upon  the 
policy  to  be  pursued  in  all  matters  of  moment. 

2.  Methods  ol  Appointment ;  Hereditary  Ex- 
ecutives.   Returning,  jhen,  to  the  consideration  of 
modern  executives  in  general,  and  having  noted   the 
prevailing  principle  of  single  control,  we  may  next  in- 
dicate the  great  differences  that  exist  in  the  method  of 
selecting  the  executive  heads  of  governments,  in  their 
tenure  of  office,  and  in  the  relations  of  the  executive  to 
the  legislative  body.   Two  separate  lines  of  classifica- 
tion are  here  presented ;  first  the  distinction  between 
hereditary  and  appointed  executives,  and  secondly  the 
distinction  between  those  that  are  real  and  those  that 
are  nominal.   A  hereditary  executive  —  a  king,  empe- 
ror, sovereign  prince,  etc.  —enjoys  a  tenure  which  is 
not  only  lifelong,  but  which  passes  to  his  heirs.   Such 
an  institution  has  of  course  no  place  among  the  polit- 
ical ideas  current   in  the   independent  states  of   the 
American  continent.   Looked  at  in  a  purely  rational 
light,  it  is  difficult  to  find  much  to  be  said  in  its  favor. 


THE  EXECUTIVE 


185 


A  hereditary  ruler  seems  on  the  face  of  thiugs  as 
absurd  as  the  hereditary  mathematician  or  hereditary 
poet-laureate  referred  to  in  the  preceding  chapter.  But 
hereditary  monarchy,  aa  it  exists  in  Europe,  is  not  to 
be  disposed  of  in  so  sim[)le  a  manner.  In  nearly  all 
countries  where  it  exists,  it  is  a  historical  product,  and 
has  grown  up  as  a  part  of  the  political  evolution  of  the 
state.  In  many  cases,  too,  it  is  regarded  by  the  people 
of  the  country,  as  most  notably  in  Great  Britain,  not 
only  with  tolerance,  but  with  the  most  sincere  ap- 
proval. The  desire  for  a  republican  form  of  govern- 
ment is  about  as  little  known  in  England  as  the  desire 
for  a  monarchical  system  in  the  United  States.  But 
the  real  secret  of  the  persistent  survival  of  hereditary 
monarchy  in  so  many  of  the  civilized  communities  of  the 
world  lies  in  the  fact  that,  in  the  cases  where  it  meets 
with  the  greatest  approval,  the  hereditary  sovereign 
is  a  nominal  and  not  a  real  exwcutive.'  In  the  United 
Kingdom,  Italy,  Hungary,  Belgium,  etc.,  the  actual 
conduct  of  government  is  not  in  the  hands  of  the  king. 
The  king  is,  to  a  great  extent,  though  of  course  not 
literally,  only  the  nominal  head  of  the  s^ate ;  public 
business  is  transacted  in  his  name,  and  professedly  by 
his  authority,  but  in  reality  the  control  of  affairs  is 
in  the  hands  of  the  prime  minister  and  cabinet,  who 
represent  the  voice  of  the  people.  In  this  form  the 
system  can  be  supported  by  many  arguments  of  great 
weight.  It  helps  to  lend  to  the  government  of  the 
country  those  features  of  stability,  permanence,  and 

1  A  yery  interesting  discussion  of  the  somewhat  accidental  develop- 
ment of  the  peculiar  position  held  by  a  "  constitutional  "  sovereign  is 
found  in  Sidney  Low's  Governance  of  England, 


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186     THE  STRUCTURE  OF  THE  GOVERNMENT 
continuity  which  are  among  the  most  essential  factors 
in  political  institutions.   To  international  dealings  it 
contributes,  whether  rightly  or  wrongly,  a  certain  pres- 
tige  that  is  not  without  its  diplomatic  value.   It  is  cer- 
tainly, also,  to  be  admitted  that  the  traditions  which 
surround  a  monarchy  of  long  continuance  help  to  in- 
spire the  actual  chiefs  of  the  government  with  a  sens© 
of  responsibility  and  dignity  most  salutary  in  its  effect. 
In    spite  of   all    this  it   may  perhaps  be  doubted 
whether  the  wonders  of  constitutional  monarchy  have 
not  been  somewhat  overestimated  by  its  English  pane- 
gyrists.  When  all  is  said  and  done  there  always  re- 
mains a  contingent  possibility  that  a  future  monarch 
may  break  rudely  away  from  the  self-effacement  im- 
posed upon  him  by  the  system.   The  admirable  man- 
ner  in  which  Queen  Victoria  and  her  successors  have 
filled  the  position  of  constitutional  sovereign  has  made 
people  forget  that  this  self-effacement  is  customary, 
and  not  part  of  the  law  of  the  land.     The  relations 
thus  established,  especially  in  the  connection  of   the 
sovereign  with  foreign  affairs,  are  extemely  delicate, 
and  demand  for  their  proper  maintenance  a  high  de- 
gree of  tact  on  the  part  of  the  monarch.   Tbe  success- 
ful operation  of  system  is  by  no  means  so  independent 
of   the  competence  or  incompetence,  the  integrity  or 
perversity  of  the  i  signing  prince  as  the  English  writers 
are  inclined  to  imply.   Whether  or  not  such  contingent 
disadvantages   overbalance   the  features  of    stability 
and  continuity  that  result  from  the  institution  of  mon- 
archy is  of  course  a  subject  admitting  a  great  diversity 
of  opinion. 

The  hereditary  monarchs  of  the  present  day  are  not 


THE  EXECUTIVE 


187 


aU  of  the  constitutional  type.    The  king  of  Prussia 
(who  by  virtue  of  his  kingship  is  also  German  em- 
peror) is  an  example  to  the  contrary.   Here  the  consti- 
tutional  maxim  that  the  king  "reigns  but  does  not 
govern  "  no  longer  holds  true.    The  king  of  Prussia 
not  only  reigns  but  governs  also,*  and  his  executive 
function    is   both   titular  and    actual.    The  kingship 
passes  to  his  descendants.   To  the  American  mind  it 
seems  very  difficult  to  defend  such  an  institution.   The 
defense  on  grounds  of  dynastic  rights  to  the  kingship 
as  a  sort  of  property,  or  on  quasi-theological  grounds  as 
a  thing  specially  instituted  by  the  deity,  hardly  needs 
refutation.    Any  defense  of  such  a  monarchy  on  the 
grounds  of  its  efficiency  carries  with  it  the  assumption 
that  the  future  sovereign  in  line  of  descent  will  of  ne- 
cessity prove  efficient.   Nevertheless,  German  writers 
on  public  law  are  quite  prepared  to  defend  the  exist- 
ence of  monarchy  even  where  not  of  the  limited  or 
constitutional  type. 

a  ElectiTO  Executives.  In  contrast  to  hereditary 
executives  may  be  placed  the  wide  class  of  those  that 
may  best  be  termed  elective.  The  terminology  is  here 
hardly  satisfactory,  for  in  addition  to  officials  actually 
elected,  such  as  the  President  of  the  United  States, 
there  exists  a  class  of  head  executive  officers  who  are 
certainly  not  hereditary,  and  who  are  rather  to  be 
thought  of  as  "i  kcted  than  elected.  The  word  "  nom- 
inated," or  appointed,  would  indicate  more  precisely  the 
method  of  their  accession  to  office.   Inasmuch,  however, 

With  U8  the  king  himself  governs ;  the  ministers  of  course  form- 
t.late  (rtdigiren)  what  the  king  has  commanded,  but  they  do  not 
govern."   Speech  of  Prince  Bismarck  in  the  German  Reichstag,  1882. 


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188     THE  STRUCTURE  OP  THE  GOVERNMENT 

as  such  chief  executives  are  found  not  in  independent 
states,  but  in  the  subordinate  governments  of  an  im- 
perial system,  it  would  seem  improper  to  make  on  their 
account  a  third  general  category  of  the  executive  in 
general.    Such  officials  as  the  Governor  General  of 
Canada,  the  Viceroy  of  India,  and  the  governors  of 
British  colonies,  all   of  whom  are  nominated   by  the 
crown,  are  of  this  description.  The  lieutenant-governors 
of  the  Canadian  provinces,  who  are  appointed  by  the 
Governor  General,  belong  to  the  same  class.  These  ex- 
ecutive officers  will  also  be  divided  into  those  that  are 
actual  and  those  that  are  only  nominal.   The  Viceroy 
of  India  is  of  the  first  sort ;  the  Canadian  Governor 
General  is  of  the  second,  and  the  lieutenant-governors 
represent  only  the  thinnest  kind  of  nominal  power. 
Such  executives  are  of  course  merely  the  outcome  of 
the  peculiar  circumstances  of  the  British  empire,  in 
which  it  is  necessary  to  reproduce  by  proxy  in  the 
colonies  and  dependencies  the  nominal  character  of  the 
power  of  the  British  sovereign. 

Most  independent  states  that  are  not  under  a  hered- 
itary monarch  have  at  their  head  an  elected  executive 
chief.  Between  these  two  an  intermediate  form  might 
be  distinguished,  a  king  elected  for  life  out  of  a  "  reign- 
ing family."  This  form  ia  often  found  in  history,  as  for 
example  in  England  at  the  time  of  the  Norman  conquest. 
It  belongs  to  an  age  when  the  king  was  in  the  full  sense 
of  the  term  the  "  war  lord,"  and  when  military  prowess 
was  so  important  in  a  ruler  that  the  reign  of  a  minor 
or  a  weakling  was  repugnant  to  the  general  sentiment 
of  the  nation.  But  among  the  elected  executives  of 
modern  civilized  states  such  a  form  no  longer  appears. 


THE  EXECUTIVE  189 

Tlie  actual  elected  executives  present  a  considerable 
diversity.   They  are  almost  all  alike  in  that  the  supreme 
power,  nominal  or  virtual,  is  vested  in  a  single  person, 
though  even  here  the  Swiss  executive  has  been  seen  to 
be  an  exception.    But  apart  from  this  m&ny  divergen- 
cies appear.    In  the  first  place  the  nmnner  of  election 
is  various.   The  President  of  the  United  States  is  elected 
by  an  indirect  election,  which  through  the  purely  me- 
chanical  nature  of   the  electoral  college   has  become 
practically  direct.   In  France  the  president  is  elected 
by  the  two  houses  of  the  legislature  sitting  together  as 
a  "  national  assembly."   The  governors  of  the  separate 
commonwealths  of  the  United  States  are  elected  di- 
rectly by  the  people.  Tlie  system  of  election  varies  among 
the  republics  of  Central  America  and  Southern  Amer- 
ica.   Some  of  them,  as  Mexico,  the  Argentine  Republic, 
and  Chili,  choose  their  presidents  by  indirect  election. 
In  others,  as  for  example,  in  Peru,  in  Brazil,  and  in 
Bolivia,  the  election  is  made  directly  by  the  people. 
Theoretically  considered,  the  process  of  indirect  election 
appears  attractive.   While  not  inconsistent  with   the 
principle  of  popular  sovereignty,  it  appears  to  put  the 
actual  choice  of  the  executive  head  into  the  hands  of 
a  specially  competent  body.    Practical  experience,  how- 
ever,  is  against  the  plan  ;  it  is  found  either  to  convert 
itsvlf  into  what  is  merely  a  needlessly  cumbrous  form 
of  direct  election,  or  else  to  lend  itself  to  the  intrigue 
and  sinister  influence  of  an  inside  ring. 

Another  difficult  problem  presents  itself  in  the  mat- 
ter  of  the  duration  of  the  executive  term  of  office  and 
in  the  question  of  reLligibility.  In  all  democratic  re- 
publican countries  there  if  an  instinctive  repugnance 


190     THE  STRUCTURE  OF  THE  GOVERNMENT 

to  long  continuance  in  office,  and  a  fear  that  an  office 
thus  held  may  transfoi-m  itself  into  what  is  practically 
a  monarchical  tenure.    In  accordance  with  this  idea  the 
presidents  of  the   different  American  republics  hold 
office  for  terms  varying  from  four  to  six  years.  For  the 
aame  rer   m  the  outjjoing  president  is  in  moat  of  these 
cases  not  eligible  for  the  succeeding  term.   Mexico,  in 
which  the  president  is  not  only  reeligible  after  his  four 
years  in  office,  but  has  ui  fact  been  continuously  in 
office  from  1884  until  190G,  is  here  an  exception.   In 
the  United  States  the  law  of  the  Constitution  does  not 
prohibit  reelection.   But  public  opinion  has  confirmed 
the  precedent  first  set  by  Washington,  and  forbids  the 
election  of  the  President  for  a  third  term.   That  such  a 
rule  was  a  salutary  precaution  at  the  inception  of  the 
republic  was  doubtless  true.   At  the  close  of  the  eight- 
eenth century,  a  republic  covering  uny  considerable 
territorial  extent  was  regarded  as  an  experimental  de- 
parture in  political  institutions.'    It  was  consequently 
well  worth  wii.le  to  make  special  sacrifices  to  avert  the 
possibility  of  the  subversion  of  republican  institutions 
by  the  too  great  dominance  of  a  single  person.    The 
example  of  Napoleor  Bonaparte,  who  found  means  to 
convert  his  consulsliip  for  ten  years  into  a  consulship 
for  life,  and  then  into  an  imperial  rule,  ilhistrates  tlie 
danger  which  Washington  and  his  immediate  successors 
w^'re  anxious  to  avoid.    But  it  may  well  be  doubted 
whether  at  the  present  time,  and  in  a  country  in  which 

1  Montesquieu  {Esprit  dex  Lois,  1748,  bk.  viii,  chap,  xvi)  says : 
"  II  est  <le  la  nature d'une  r^publique  qnVlle  n'ait  qu'un  petit  territoite : 
■anscela  elie  ne  peutKufero  snbs-^-r."  The  reflections  which  f.. How  on 
the  political  dangers  of  a  larg.  blic  are  especially  interesting.  See 

also  Rouuean'a  SocicU  CotUrac. 


THE  EXECUTIVE  191 

republican  institutJonB  have  been  consolidated  by  » 
hundred  years  of  political  growth,  such  a  customary 
regulation  has  not  become  an  anachronism.  It  deprives 
the  country  of  the  services  of  its  greatest  political  leader 
at  the  very  time  when  his  matured  experien'-  has  es- 
pecially  fitted  him  for  his  post.  Certainly  ii.  i;.ngland 
such  a  conipidsory  retirement  of  men  like  CJladstone, 
Beaconsfield,  an<l  Salisbury  at  the  very  zenith  of  their 
jMjlitical  eareerwouhl  be  eonsid.red  a  national  h)ss.  In 
France  the  president  is  elected  for  seven  years  and  is 
relligible;  but  it  must  be  remembered  that  in  this  in- 
stance  the  president  is  not  the  governing  executive  but 
only  the  nominal  head  of  the  state.  The  Fronch  repub- 
lie  is  a  parliamentary  republic;,  and  the  executive  power 
is  in  reality  held  by  the  prime  minister  and  his  cab- 
inet. 

4.  Presidential    and  Parliamentary   Govern- 
ment  From  what  has  been  said  it  will  be  seen  that 
the  divisions  of  executive  into  hereditary  and  elective, 
nominal  and   actual,  lie  crosswise  of  each  other.    A 
hereditary  sovereign  may  be  nominal,  as  in  the  case  of 
the  British  king,  or  he  may  be  an  actual  ruler,  as  is  the 
king  of  Prussia.   Similarly  an  elected  executive  such  as 
the  President  of  the  United  States  is  actual,  while  the 
presidenii  of   the  French  Republic    is  only  nominal. 
The  distinction  between  nominal  and  virtual  executives 
leads  to  the  consideration  of  the  most  fundamental  of 
all  questions  in  regard  to  tlje  executive,  namely,  its 
connection  with  the  legislature.    This  has  already  been 
referred  to  in  discussing  the  separation  of  powers,  but 
some  further  treatment  is  here  necessary.   The  govern- 
ments of  modern  states  are  divided  between  two  rival 


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192     THE  STRUCTURE  OF  THE  GOVERNMENT 

■y»tom>  of  operation.  Of  thew  the  one  is  commonly 
termed  "  parliamentary,"  "  re3pon«iblo,"  or  "cabinet" 
government;   the    other,    for  which    no    satisfactory 
designation  can  be  found,  has  been  variously  styled 
"  non-responsible,"  "  presidential,"  or  "  congressional" 
government.  In  a  parliamentary  government  the  tenure 
of  office  of  the  virtual  executive  is  depe«»dent  on  the 
will  of  thw  legislature ;  in  a  presidential  government 
the  tenure  of  office  of  the  executive  is  independent 
of  the  will  of  the  legislature.   Parliamentary  govern- 
ment is  always  found  in  connection  with  the  presence 
of  a  nominal  executive.    But  it  is  to  be  remembered 
that  this  nominal  executive  need  not  be  a  hereditary 
titular  sovereign.    In  France  the  government  is  parlia- 
mentary, but  the  nominal  head  of  the  state  is  an  elected 
officer.    Similarly  the  presidential  system  is   always 
found  in  connection  with  a  real  or  virtual  executive ; 
but  this  real  executive  need  not  be  an  elected  presi- 
dent, as  the  instance  of  Prussia  clearly  shows.   It  thus 
seems  that  the  word  presidential  is  somewhat  a  mis- 
nomer, since  a  presidential  government  may  not  have 
a  president,  and  a  country  which  has  a  president  need 
not  have  a  presidential  government.    Unfortunately, 
however,  no  more  adequate  tenuinology  can  be  found; 
"  non-responsible  "  carries  with  it  an  entirely  false  con- 
notation, and   "congressional"  has   already   another 
signification  in  allusion  to  the  Congress  of  the  United 

States. 

The  principle  of  parliamentary  government  is  best 
understood  by  studying  the  evolution  and  operation  of 
the  British  cabinet.  The  king  of  EugU  nu  was  never 
without  a  group  of  councilors  and  chief  officers  to  aid 


/ ' 


THE  EXECUTIVE  103 

him  in  the  conduct  of  the  government.   These  adTiiera, 
knowu  in  Nonnan  timet  as   the  King's  Ordinary  or 
Permanent  Council,  and  from  the  time  of  Henry  VI 
as  tlie  Privy  Council,  were  men  of   the  king's  own 
choice.    They  were  the  king's  "ministers"  in  the  lit- 
eral  sense  of  the  term.    Nor  were  they,  foj  centuries 
after  the  consolidation  of  consultative  assemblies  into  a 
national  Parliament  (1295),  controlled  by  the  legisla- 
ture,  except  by  the  heroic  remedy  of  impaachment. 
They  were  rather  the  natural  antagonists  of  the  Parlia. 
ment  than  its  chosen  representatives.   This  is  particu- 
larly  seen  during  the  tyranny  of  the  Stuarts,  where 
Sir  Thomas  Wentworth's  desertion   of  the   popular 
cause  elevated  him  to  the  position  of  a  minister  of  the 
crown.   Mor<  3ver,  the  group  of  ministers  who  formed 
the  '  '.ag's  council  constantly  showed   a  tendency  to 
unduly  increase  in  numbers.   This  led  to  the  concen 
tration  of  power  in  the  hands  of  an  inner  circle,  to 
whom  the  name  "  cabinet "  came  to  be  applied.   The 
overthrow  of  the  Stuarts  and  the  recognition  of  the 
principle  of  the  supremacy  of  Parliament  by  tiie  Bill 
of  Rights  (and  later  by  the  Act  of  Settlement)  ren- 
«lered  the  previous  relation  of  ministers  and  Parliament 
no  longer  possible.    As  a  means  of  conducting  the 
executive  government  with  the  support  of  the  members 
of  Parliament,  William  III,  acting  on  the  advice  of  the 
Earl  of  Sunderland,  deliberately  chose   his  ministers 
from  the  ranks  of  the  party  dominant  in  the  Commons. 
This,  if  ever  one  may  sjieak  with  propriety  of  a  politi- 
cal invention,  was  the  invention  of   the  cabinet  sys- 
tem  of  government.    Yet  the  system  thus  instituted 
remained  for  nearly  a  century  in  a  rudimentary  and 


1=     ■' 


V 


4  i, 


'i  , 


194      THE  STRUCTURE  OF  THE  GOVERNMENT 

imperfect  state.  The  ministers  did  not  at  first  feel 
called  upon  to  resign  on  the  loss  of  parliamentary 
support.  They  prefered  to  wait,  as  did  William's  min- 
istry in  1698,  for  the  adverse  majority  to  "  blow  over." 
Nor  did  the  ministry  throughout  the  first  half  of  the 
eighteenth  century  resign  or  enter  office  as  a  body. 
Lord  Rockingham's  cabinet  of  1765  may  be  looked 
upon  as  the  first  set  of  ministers  coming  into  office  as 
a  body.  Even  till  the  end  of  the  century  the  ministers, 
though  they  might  belong  to  the  same  party,  were  not 
of  necessity  united  in  policy  or  harmonious  in  their 
political  relations  with  one  another.  Pitt's  insistence 
on  the  resignation  of  his  refractory  chancellor  Lord 
Thurlow  (1792)  marks  the  recognition  of  this  stage 
of  cabinet  evolution;  the  refusal  of  the  ministers  of 
George  IV  to  give  him  individual  advice  in  reference 
to  a  matter  of  foreign  policy  indicates  its  final  adoption.* 
Taking  the  cabinet  as  it  now  exists,  it  may  be  said 
to  operate  on  the  following  plan :  It  consists  of  a  group 
of  from  fifteen  to  twenty  men,  who,  though  not  legally 
a  corporate  unit,  have  in  practice  a  united  policy  and 
a  united  responsibility.  Each  of  them  is  a  member  of 
the  legislature,  either  of  the  Lords  or  of  the  Commons. 
They  are  nominated  by  the  crown,  acting  on  the  ad- 
vice of  one  of  their  number  whom  the  king  has 
first  selected  to  be  the  prime  minister.  They  belong  to 
the  political  party  or  coalition  of  parties  which  com- 
mands the  support  of  the  House  of  Commons.  Should 
they  lose  that  support  they  resign  collectively.   In  the 

1  The  development  of  cabinet  pfovernment  in  Great  Britiin  is  traood 
iu  Ilearn,  Guvtrnmtnt  of  England.  See  also  C.  Ransome,  Rise  of  Con- 
otitutional  Government. 


UM 


■Ah 


THE  EXECUTIVE  195 

United  Kingdom  the  whole  of  this  arrangement  is  cus- 
tomary, and  not  legal.  But  such  need  not  be  the  case 
In  France,  for  example,  it  is  part  of  the  law  of  the 
constitution  »  that  "the  ministers  are  collectively  re- 
sponsible to  the  chambers  for  the  general  policy  of  the 
government."  This  is  held  to  mean  that  they  must 
resign  if  no  longer  supported  by  the  Chamber  of 
Deputies.* 

To  this  relation  thus  existing  between  the  French  or 
British  executive  and  legislature,  the  presidential  sys- 
tem as  seen  in  the  United  States  or  Germany  stands 
m  complete  contrast.    In  the  United  States,  for  in- 
stance, the  President,  who  is  the  actual  executive,  is 
elected  independently  of  the  legislature,  for  a  term  of 
years  prescribed  by  the  Constitution.    Except  by  the 
process  of  impeachment,  the  legislature  cannot  shorten 
his  term  in  office.    Nor  can  the  legislature  dictate  to 
the  President  the  political  or  administrative  policy  to 
be  followed,  nor  control  it  in  any  direct  le-al  way 
excepting  in  so  far  as  the  Senate  has  a  veto  upon  the 
making  of  appointments  and  treaties.    Moreover,  the 
members  of  the  President's  "cabinet,"  as  the  groii'i)  of 
executive  officers  who  are  at  the  head  of  the  different 
departments  is  commonly  called,  are  appointed  by  the 
President  himself.    There  is  no  obligation  upon  him  to 
consult  the  wishes  of  the  logislatun,  in  selecting  them. 
Nor  can  the  legislature,  except  in  the  last  resort,  by 
impeachment,  force  the  dismissal  of  members  of  the 
cabinet.    The  President,  on  the  other  hand,  can  ai)point 

'  Loi  Constitutlonelle,  Feb.  2."),  18".").  art.  (i. 

!  '^he  extent  of  the  p<.w.r  of  the  Freneh  .S..„.nt,  t„  force  a  n.inistrj- 
out  of  office  w  a  doubtful  constitutional  point.  Dupriez,  Les  Mlnistrei 
datw  Us  Prmcipaux  Pays  d'Europe,  vol.  ii. 


II 


If 


i 


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s 


196      THE  STRUCTURE  OF  THF  GOVERNMENT 

and  dismiss  them  at  will.  Similarly  in  Germany,  the 
emperor  has  an  actual  executive  power.  His  official 
acts,  indeed,  require  the  countersignature  of  his  chan- 
cellor, but  the  latter  is  an  officer  of  his  own  creation, 
holding  office  during  the  emperor's  pleasure.*  There 
is  no  power  on  the  part  of  the  legislature,  by  an  ad- 
verse vote  or  otherwise,  to  force  the  resignation  of  the 
chancellor.  The  same  relation  is  found  in  the  govern- 
ment of  the  kingdom  of  Prussia. 

The  above  illustrations  show  what  different  purposes 
parliamentary  and  presideutiiil  government  may  be 
made  to  serve.  In  Prussia  presidential  government 
permits  of  the  existence  of  a  national  legislature,  the 
lower  house  of  which  is  democratic,  without  putting  an 
end  to  the  dominant  power  of  the  crown.  In  Great 
Britain  parliamentary  government  has  afforded  a  means 
of  compromise  whereby  the  monarch  retains  his  nomi- 
nal position  as  the  controlling  authority,  while  in 
reality  the  centre  of  power  has  been  shifted  to  the 
elected  representatives  of  the  people.  In  France  and 
the  United  States,  on  ihe  other  hand,  the  parliamentary 
and  the  presidential  systems  have  been  each  deliberately 
adopted  as  the  best  means  of  putting  into  practice  the 
doctrine  of  popular  sovereignty. 

It  is  impossible  here  to  institute  a  detailed  criticism 
of  the  merits  of  the  two  systems.  In  England  the  par- 
liamentary system  plays  a  specially  useful  part  in  en- 
abling the  government  to  be  converted  into  a  democracy 
without  breaking  with  the  historical  position  of   the 

1  The  ininiedi.itp  assistants  of  the  imperial  chancellor  at  the  head 
of  the  different  departments  are  not  bis  colleaguea,  but  'lis  subordi- 
nates in  the  strict  sense  of  the  term. 


THE  EXECUTIVE  197 

crown.  The  same  purpose  has  been  effected  by  imitation 
in  Italy,  Spain,  and  other  countries.    The  king  of  Sar- 
dinia was  accepted  as  ruler  by  the  other  states  which 
were  joined  into  a  united  Italy  (1859-70)  by  virtue  of 
the  fact  that  the  governing  power  would  He  witli  tlio 
representatives  of  the  nation  at  large.   If  the  gradual 
abolition  of  monarchy  is  to  be  part  of  the  political  evo- 
lution  of  the  future,  it  will  prove  to  have  been  effected 
by  njeans  of  the  parliamentary  system.    In  spite  of  all 
that  has  been  said  in  its  favor,  the  system  is  not  without 
its  drawbacks.    It  works  evenly  and  well  where  two 
great  political  ^..rties  exist,  which  alternately  hold  the 
po'-T  of  government  and  of  which  each  is  gradually 
fc      d  to  give  place  to  the  other.   But  where  not  one 
but  many  parties  exist  (as  in  France  and  Italy  at  the 
present  day),  loose  in  cohesion,  and  constantly  forming 
and  reforming  into  new  coalitions,  it  introduces  a  dan- 
gerous element  of  instability  into  national  government, 
and  leads  to  the  sacrifice  of  principle  for  the  sake  of 
power.    On  the  other  hand  Mie  presidential  system  has 
very  decided  disadvantages.   The  office  of  chief  execu- 
tive becomes  of  so  great  importance  that  the  recurrent 
election  of  the  president  occasions  periods  of  great  ex- 
citement and  upheaval,  always  unfavorable  to  industrial 
activity  and  in  turbulent  countries  fraught  with  possi- 
bilities  of  revolution.  Moreover,  apart  from  the  artificial 
junction  effected  by  party  ties,  the  system  may  place  the 
executive  and  the  legislature  in  dangerous  antagonism. 
5    Subordinate  Officials  and  the  Executive;  the 
Civil  Service.     It  has  been  said  at  the  opening  of 
the  chapter  that  the  term  executive  signifies  sometimes 
the  single  head  of  the  state,  sometimes  the  head  of 


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198      THE  STRUCTURE  OF  THE  GOVERNMENT 

the  state  together  with  his  chief  associates  or  subordi« 
nates,  and  at  times  the  entire  force  of  executive  officers, 
high  and  low.  The  subdivisions  of  the  executive  gov- 
ernment and  the  relations  of  its  parts  among  them- 
selves must  consequently  be  separately  considered.  A 
distinction  may  here  be  at  once  made  between  executive 
bodies  that  are  of  the  nature  of  a  hierarchy,  radiating 
from  a  common  source,  and  those  that  may  be  spoken 
of  as  coiirdinate.  In  a  purely  hierarchical  executive 
the  whole  staff  of  executive  officers  are  appointed  either 
directly  or  indirectly  by  the  chief  executive.  Of  this 
type  is  the  government  of  the  United  Kingdom,  'a 
which  appointments  flow  from  the  crown,  and  the 
federal  government  of  the  United  States,  whose  officers 
are  appointed  either  directly  by  the  President  or  indi- 
rectly by  a  person  or  persons  nominated  by  the  Presi- 
dent. The  same  is  true  in  general  of  the  executive 
officers  of  most  independent  stavos.  On  the  other  hand 
the  commonwealths  of  the  American  Union  have  co- 
ordinate executives.  Here  the  appointing  power  of  the 
chief  officer  of  the  government  (the  state  governor)  is 
very  limited;  the  majority  of  executive  officers  are 
elected  to  their  j)ositions  by  the  people.  This  is  true 
even  of  the  chief  officials  associated  with  the  gov- 
ernor,—  the  lieutenant-governor,  the  secretary  of  state, 
the  treasurer,  the  attorney-general,  superintendent  of 
education,  auditor,  comptroller,  etc.  But  a  body  of  this 
sort  is  still  properly  to  be  regarded  as  a  unit  and  not 
as  a  plural  executive,  since  the  whole  staff  of  officials 
is  under  the  supervision  and  to  some  extent  under  the 
control  (sometimes  by  power  of  dismissal)  of  the  execu- 
tive head  of  the  government.    Moreover,  the  depart- 


111 


THE  EXECUTIVE  199 

mental  heads  each  exercise  a  single  and  not  a  collective 
authority.  The  contrast  between  a  coordinate  executive 
and  a  hierarchical  is  extreme.  The  former  works  well 
enough  in  the  subordinate  governments  of  a  federal 
system ;  in  these,  especially  where  there  is  an  elaborate 
written  constitution,  executive  duties  are  precise  and 
there  is  but  little  latitude  for  general  policy.  But  in  a 
national  government  the  case  is  different ;  here  there 
is  need  for  a  central  power  of  great  authority,  exercis- 
ing a  large  amount  of  administrative  discretion  and 
able  to  rely  on  the  vigorous  cooperation  of  harmonious 
subordinates.  The  unity  of  purpose  required  to  meet  a 
«udden  and  serious  national  emergency  could  hardly 
be  found  in  a  cabinet  of  executive  officers  elected  singly 
and  separately  by  the  people. 

In  all  governments,  even  though  there  may  exist  one 
person  of  supreme  executive  power,  it  is  necessary  to 
divide  up  the  practical  conduct  of  the  administration 
into  a  number  of  departments.  The  division  adopted 
in  four  of  the  leading  governments  of  the  world  is 
shown  in  illustrative  form  in  the  table  at  the  end  of 
the  present  chapter.  It  will  be  seen  that  certain  great 
departments  of  business  —  the  management  of  foreign 
affairs,  of  the  army,  of  the  uavy,  and  of  the  finances  — 
are  common  to  all.  The  American  Secretary  of  State 
corresponds  roughly  to  what  is  elsewhere  called  the 
Secretary  or  Minister  of  Foreign  Affairs.  The  names 
of  most  of  the  remaining  cabinet  officers  indicate  ap- 
proximately the  functions  to  be  performed.  In  addi- 
tion  to  the  usual  officers,  each  country  finds  it  necessary 
to  establish  certain  special  departments  to  correspond 
to  its  peculiar  needs.  The  office  of  th^  British  Colonial 


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200     THE  STRUCTURE  OF  THE  GOVERNMENT 

Secretary  and  that  of  the  Secretary  for  India  are  ex- 
amples of  this.  In  "  parliamentary  "  governments,  too, 
it  is  found  useful  to  include  in  the  cabinet  group 
several  officers  who  have  either  no  departmental  duties 
or  duties  of  only  a  nominal  character,  and  are  thus 
free  to  aid  in  the  general  political  control.  In  Great 
Britain  this  in  effected  by  means  of  sinecure  offices 
almost  free  from  actual  administrative  duties,  such 
as  the  positions  of  the  First  Lord  of  the  Treasury 
(generally  held  by  the  Premier),  the  Lord  Privy  Seal, 
the  Chancellor  of  the  Duchy  of  Lancaster,  etc.  In 
Italy,  Canada,  and  other  places,  the  practice  is  adopted 
of  admitting  to  the  cabinet  ministers  "  without  port- 
folio." 

Below  these  heads  of  departments  comes  the  general 
body  of  executive  officers  that  form  what  is  called  the 
civil  service.  The  relation  of  the  members  of  the  civU 
service  to  the  heads  of  the  government,  their  appoint- 
ment, dismissal,  and  tenure  of  office,  is  one  of  the  dif- 
ficult problems  of  present  politics.  It  will  be  well, 
therefore,  briefly  to  indicate  the  existing  status  and 
regulation  of  the  civil  service  in  Great  Britain  and  tlie 
United  States.  The  case  of  orreat  Britain  may  best  be 
discussed  first. 

The  British  civil  service  comprises  a  staff  of  about 
80,000  officials.  This  includes  the  officers  of  the  royal 
household,  a  large  number  of  officials  connected  with 
the  foreign,  home,  and  colonial  offices,  the  admiralty, 
the  treasury,  etc.,  officials  serving  under  the  local  gov- 
ernment board,  the  patent  office,  the  emigration  office, 
the  diplomatic  and  consular  corps,  collectors  of  customs 
and  excise,  postmasters,  etc.   The  fundamental  prin- 


THE  EXECUTIVE  201 

ciple  in  the  conduct  of  the  service  thus  constituted  is 
permanence  in  office,  and  the  dissociation  of  tenure  of 
office  from  the  changes  of  government  caused  by  the 
cabinet  system.   The  only  officers  of  a  political  com- 
plexion  are  the  heads  of  the  departments,  together  with 
certain  chief  secretaries  and  assistants  who  are  known 
collectively  as  the  niinistry,  and  who  number  in  all 
about   fifty    i)ersons.    Thus,  for   example,  the  ilouie 
Secretary  (principal  secretary  of  state  for  home  affairs) 
has  as  his  subordinate  a  "  parliamentary  under-secre- 
tary,"  who,  like  himself,  is  a  member  of  the  ministry, 
and  resigns  office  on  the  defeat  of  the  government.    lie 
has  also  a  "  permanent  under-st^cretary,"  who  is  not  a 
political  officer,  and  who  is  at  the  head  of  the  standing 
staff  of  clerks,  superintendents,  inspectors,  and  other 
officials  of  the  department.   A  similar  plan,  though  the 
official  titles  vary,  is  in  use  in  the  Foreign  Office,  Colo- 
nial Office,  India  Office,  War  Office,  the  Admiralty,  the 
Treasury,  the  Board  of  Trade,  the  Local  Government 
Board,  and  the  Post  Office.    Tl.e  permanent  tenure  of 
office  contributes  greatly  to  the  efficiency  and  integrity 
of  the  British  civil  service.    Its  origin  is  to  be  traced 
to  the  fact  that  in  earlier  times  public  office  in  England 
was  a  species  of  real  property  held  by  the  incumbent 
for  life  or  in  fee.   There  still  exist  in  the  British  civil 
service  a  few  offices  w'--h  are  held,  like  the  judicial 
positions,  for  life  or  good  conduct.    In  the  case  of  the 
great  majority  of  official  positions  in  the  civil  service 
the  crown  retains  the  right  of  dismissal.   This  right  is 
exercised,  however,  only  in  cases  of  incompetence  or 
dereliction  of  duty,  and    never  for  political  reasons 
or  to  make  room  for  a  necessitous  office-seeker.    For 


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202     THE  STRUCTURE  OF  THE  GOVERNMENT 


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entry  into  the  service  use  is  made,  in  most  of  the 
British  departments,  of  tlic  principle  of  open  competi* 
tion. 

In  the  United  States  the  method  of  appointment  and 
dismissal  in  the  executive  branch  of  the  federal  govern- 
ment has  proved  a  matter  of  serious  national  concern. 
A  very  few  of  its  officers  hold  their  posts,  as  do  the 
federal  judiciary,  on  a  life  tenure.  Some  offices,  as, 
for  example,  the  cabinet  positions,  are  held  during 
the  pleasure  of  the  President.  But  in  the  case  of  the 
great  majority  of  positions,  the  appointment  is  made 
for  a  stated  term  of  years,  usually  four.  In  the  actual 
operation  of  the  governnient,  the  difficulty  centres 
around  the  questions  of  dismissal  from  office  and  re- 
appointment  at  the  expiration  of  the  statutory  term. 
It  is  clearly  to  be  desired  that  competent  officials  should 
be  left  undisturbed  in  their  positions,  whatever  be  their 
political  opinions.  Particularly  is  this  the  case  with 
such  positions  as  those  in  the  customs  service,  the 
postal  service,  etc.,  where  the  duties  to  be  performed 
are  of  a  mure  or  less  routine  nature,  and  cannot  be  said 
to  depend  for  their  proper  performance  on  harmony  of 
political  opinion  between  the  head  of  the  department 
and  his  subordinates.  On  the  other  hand,  there  is 
always  the  fear  that  the  too  great  certainty  of  continu- 
ance in  office  may  lead  to  official  stagnation  and  a 
perfunctory  discharge  of  duty.  The  federal  Constitu- 
tion is  not  explicit  on  the  subject  of  dismissal  from 
office.  The  extent  of  the  right  of  dismissal  is  reached 
by  inference  from  the  constitutional  provisions  in 
regard  to  appointment,  and  from  the  obvious  exigencies 
of  the  ease.   The  power  of  appointment  in  the  case  o£ 


THE  EXECUTIVE 


203 


ambassadors,  other  public  ministers  and  consuls,  and 
judges  of  the  Supreme  Court,  lies  with  the  President, 
subject  to  ratification  by  the  Senate ;  but  "  the  Con- 
gress may  by  law  vest  the  appointment  of  such  inferior 
officers  as  they  think  proper  in  the  President  alone,  or 
in  the  courts  of  law,  or  in  the  heads  of  departnieiita."  ' 
Following  the  decision  of  the  courts,  the  power  of  dis- 
missal is  incident  to  the  power  of  appointment.  Con- 
gress, it  is  true,  during  its  conflict  with  President 
Johnson,  undertook  to  limit  the  executive  power  oi 
removal  bypassing  the  Tenure  of  Office  acts  (1867  and 
1869),  which  called  for  the  Senate's  ratification  of 
removal.  The  repeal  of  these  acts  (1887)  put  the 
matter  on  the  same  constitutional  footing  as  before. 

During  the  first  thirty  years  of  the  history  of  the 
Union  the  power  of  dismissal  was  not  used  as  a  means 
of  finding  positions  for  party  adherents.  Nearly  all  the 
federal  officials  held  office  during  the  pleasure  of  the 
executive,  and  dismissal,  except  for  cause,  was  not  con- 
templated. Miidison  spoke  of  it  as  unconstitutional. 
The  act  of  1820,  prescribing  a  four  years'  term  of  office 
(still  subject  to  removal  at  will)  for  collectors  of  cus- 
toms and  many  other  federal  officers,  offered  a  starting- 
point  for  a  new  system.  With  the  advent  of  President 
Jackson  (1829)  was  inaugurated  the  "spoils  system." 
Wholesale  removals  from  office  were  made,-  and  the 
places  thus  made  vacant  became  the  prizes  of  the  Presi- 
dent's political  followers.  This  disastrous  precedent 
thus  established  was  followed  by  later  administrations, 

'  Constitution,  art  ij,  §  2. 

*  In  the  first  twelve  months  of  his  presidency,  Jackson  made  734  re- 
movals from  federal  offices. 


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204      TH£  STRUCTURE  OF  THE  GOVERNMENT 


until  the  "  clean  sweep  "  of  offices  became  a  recurrent 
feature  of  American  |)olitic8.  Not  the  worst  feature  of 
the  system  has  been  tlie  fretiuent  incompetence  of  the 
persons  appointed  for  political  reasons  to  the  Tacant 
offices. 

The  obvious  injustice  of  the  "  spoils  system  "  and  the 
inefficiency  thereby  m'cnMJoncd  in  the  ]>ul)lio  service 
led  to  a  movement  in  fuvor  of  civil  service  reform, 
which  culminated  in  the  Civil  Service  Act  of  1882.  The 
purpose  of  this  act  is  to  separate  as  far  as  possible  the 
civil  service  from  politics,  and  to  introduce  the  system 
of  appointments  by  merit  based  on  competitive  exam- 
inations. The  act  establishes  a  body  of  three  commis- 
sioners whose  duty  it  is,  at  the  request  of  the  President, 
to  aid  him  in  drawing  up  rules  directed  towards  the 
following  objects;  that  open  competitive  examina- 
tions shall  be  held  in  all  branches  of  the  civil  service 
when  classified  for  the  purpose,  and  that  appointments 
to  office  shall  be  made  from  those  applicants  graded 
highest ;  that  appointments  at  Washington  shall  be 
apportioned  among  the  states  according  to  population  ; 
that  no  person  in  the  public  service  shall  be  under  ob- 
ligation to  contribute  to  any  political  fund,  nor  shall 
any  person  in  the  public  service  use  his  authority  to 
coerce  the  political  action  of  any  other  person.  The  act 
does  not  call  for  the  classification  of  persons  appointed 
by  the  President  and  ratified  by  the  Senate,  nor  of 
those  employed  merely  as  laborers.  There  are  also  a 
large  number  of  positions  which  are,  for  various  reasons, 
excepted  from  the  rules.  Of  the  370,000  posts  in  the 
ejcecutive  civil  service  in  1910,  234,940  were  subject 
to  the  competitive  system.  It  is  evident  that  where 


THE  EXECUTIVE 


205 


new  appointments  can  be  made  only  on  a  basis  of 
certified  fitness,  the  tendency  deliberately  to  create 
vacancies  will  diminioh,  and  competent  officials  will 
invax-iably  be  retained  in  office.  Not  the  least  merit  of 
the  Civil  Service  Act  i«  that  it  helps  to  educate  opin- 
ion. It  is  only  by  the  growth  of  a  vigorous  public  feel- 
ing in  condemnation  of  the  spoils  system  that  the  evil 
can  be  eradicated. 

READINGS  SUGGESTED 

Bodley,  J.  E.  C,  France  (1898),  vol.  i,  bk.  ii,  chap,  ii  (The  Chief 

of  the  State). 
Lowell,  A.  L.,  Governments  and  Parties  in  Continental  Europe 

(1897),  vol.  i,  chap.  ii. 
Dupriez,  Les  Ministres  dans  les  Principaux  Pays  d'Europe,  et 

d'Aintfrique  (1892),  vol.  i,  part  v,  vol.  ii,  part  vi. 
Burgess,  J.  W.,  Political  Science  and  Constitutional  Law  (1808), 

part  ii,  bk.  iii,  division  iii,  chtip.  iii,  pp.  21&-2C3. 


M 


'«■ 


t 


FURTHER  AUTHORITIES 

Burgess,  J.  W.,  Political  Science  and  Constitutional  Law  (1898), 

vol.  ii. 
Low,  S.,  Governance  of  England  (1904). 
Hart,  A.  B.,  Actual  Government  (1903). 
Ilansome,  C,  Rise   of  Constitutional   Government   in   England 

(1883). 
Montesquieu,  Esprit  des  Lois  (1748). 
Moran,  T.  F.,  The  English  Government  (1903). 
Anson,  Sir  W.,  The  Law  and  Custom  of  the  Constitution,  part  i 

(1890). 
Ridges,  E.  W.,  Constitutional  Law  of  lingland  (1905). 
Stanwood,  E.,  History  of  the  Presidency  (1901). 
Reports  of  United  States  Civil  Service  Commission. 
Ford,  H.  L.,  Rise  and  Growth  of  American  Politics  (1900). 


Hi 


a08     THE  STRUCTURE  OF  THE  GOVERNMENT 


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CHAPTEU  IV 

THE  JUDICIARY  AND  THE  ELECTORATE 

1.  The  Jodicinl  Offic«  and  it.  Tenure.  -2.  The  KeUtion  of  the  Court, 
to  the  Executive  .nd  to  the  LegitUture.  -  3.  Admini.trative  L«w 
•nd  Administrative  CourU.-4.  The  Electorate:  Evolution  of  So- 
called  Univerwl  Sating^ ;  the  Preeent  Suifrage  in  Leading  Coun- 
triee.  — 6.  Critici»in  of  Exi.ting  Sy.tem* ;  the  Caw  of  Women,  of 
Negroea,  etc.  —  0.  Repre»entation  of  Minorities. 

1.  The  Jndicial  Office  and  its  Tenure.  The  judi- 
cial branch  of  the  government,  though  less  numerous 
than  the  executive  (in  its  wider  sense),  occupies  a  posi- 
tion no  less  important  in  the  organization  of  the  state. 
The  prime  function  of  the  judiciary,  performed  in  all 
states,  is  to  decide  upon  the  application  of  the  existing 
law  in  individual  cases.  The  essential  requisite  in  » 
judge  is  consequently  an  exact  knowledge  of  the  law. 
The  work  of  the  judiciary  is  thus  a  highly  technical 
function,  demanding  for  its  proper  accomplishment 
the  trained  intellect  of  a  specialist.  Whether  the  law  is 
right  or  wrong,  just  or  unjust,  is  a  secondary  matter  : 
the  duty  of  the  judge  is  to  adjudicate  upon  the  law  as 
it  is,  and  not  upon  the  law  as  it  ought  to  be.  It  is  far 
better  that  a  bad  law  should  work  injustice  in  an  indi- 
vidual instance  than  that  a  judge  by  deliberately  re- 
fusing  to  recognize  it  should  impair  the  principle  of 
law  itself. 

In  actual  fact,  however,  jndicial   decisions  are  far 
more  than  merely  declaratory  in  their  nature;  they 


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.,i 

208 


Ah.  ;i.  "UCTUUE  OF  THE  GOVERNMENT 


1  •  -v  ■ 


1 

tf 

contu'  •  r  '  .;  ructive  element  and  serve  to  expand  the 
existing  law  into  a  more  and  more  detailed  interpreta- 
tion. For  no  statute  can  be  so  minute  in  its  provisions 
as  to  contemplate  all  possible  cases,  and  to  admit  al- 
ways of  only  one  construction.  Where  the  letter  of 
the  law  is  silent,  the  judge  is  called  upon  to  attach  to 
it  the  meaning  which  may  be  considered  "  reasonable," 
that  is  to  say,  which  is  consistent  with  the  general 
principles  of  morality  and  ))ublic  policy.  In  countries 
such  as  England  and  the  United  States  this  principle 
is  carrictl  very  far ;  for  here  the  decisions  once  given 
are  viewed  as  precedents  for  future  ones.  Such  pre- 
cedents are  not,  of  course,  absolutely  binding,  but  the 
presumption,  where  identity  of  circumstances  can  be 
established,  is  vastly  in  their  favor.  The  process  of 
adjudication  thus  amounts  to  a  sup2)lemental  form  of 
legislation,  and  a  large  part  of  existing  law  is  said  to 
be  "  made  "  by  the  judges. 

The  nature  of  judicial  functions,  viewed  in  this  light, 
clearly  demands  that  the  judiciary  must  be  as  impartial 
as  is  humanly  possible.  Not  only  nnist  their  own  pe- 
cuniary interests  be  unaffected  by  the  legal  decisions 
given  by  them,  but  they  must  be  removed  entirely  from 
the  play  of  political  interests.  It  is  for  this  reason  that  in 
a  well-ordered  government  the  judiciary  should  be  ade- 
quately paid  by  a  compensation  not  affected  by  the  num- 
ber and  nature  of  their  decisions,  and  should  enjoy  per- 
manent tenure  of  office  and  be  independent  of  the  good 
will  or  ill  will  of  the  other  branches  of  the  government. 
This  object  is  adecpiately  effected  in  the  national  gov- 
ernment of  the  United  States  ;  the  Constitution  (art.  iii, 
§  1)  prescribes  that  "  the  judges,  both  of  the  supreme 


THE  JUDICIARY  AND  THE  ELECTORATE     209 
and  the  inferior  courts,  shall  hold  their  offices  during 
good  behavior,  and  shall,  at  stated  times,  receive  for 
their  services  a  compensation  wb':.  sLaM  not  be  dimin- 
ished during  their  continuant    ai  office."  '    :"he  same 
is  true  in   the  case  of   Gre?     Pritaiu.   The  English 
judges  until  the  close  of  the  s."^:^i'iexith  century  held 
their  office  at  the  pleasure  of  the  crown,  a  position  ob- 
viously  inconsistent  with  impartiality.  The  Act  of  Set- 
tlement (1701)  declares  that "  judges'  commissions  shall 
be  quamdiu  se  bene  gesserint,  and   their  salaries  as- 
certained  and  established."  Removal  can  only  be  made 
"  upon  the  address  of  both  houses  of  Parliament."  ^   The 
position  of  the  judiciary  thus  established  has  never 
been  altered.   The  system  has  also  been  adopted  in  the 
British  colonies.  The  permanent  and  independent  tenure 
of  the  judges  thus  secured  in  the  United  States  and  in 
the  British  Empire,  and  found  also  in  France,  Prussia, 
and  other  leading  countries  is  unfortunately  not  uni- 
versal.  The  commonwealths  of  the  United  States  are  a 
notable  exception.   In  many  of  these  a  false  conception 
of  the  principle  of  popular  sovereignty,  and  the  vicious 
influence  of  the  doctrine  of  "  rotation  in  office  "  has  led 
to  the  election  of  the  judges  by  the  people  for  a  stated 
term  of  years.   In  some  states,  it  is  true,  the  judges  are 
nominated  by  the  governor  or  elected  by  the  legislature ; 
in  some  also  they  hold  office   during  good   behavior.' 
But  the  majority  of  judicial  positions  in  the  state  gov- 
ernments are  held  by  election  for  a  stated  term,  often 

1  This  does  not  hold  good  of  territorial  judges,  whose  term  of  office 
IS  fixed  at  four  years. 

2  Anson  describes  this  as  a  tenure  "  as  regards  the  cmwn  during  good 
behavior,  as  regards  ParUament  at  pleasure."  It  is  practically  a  per- 
nuuivnt  tenors. 


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210      THE  STRUCTURE  OF  THE  GOVERNMENT 

as  short  as  two  years.  Such  an  institution  cannot  be 
too  strongly  condemned.  It  exposes  the  judges  to  the 
influence  of  political  and  personal  motives  in  their  con- 
duct on  the  bench,  impairs  the  impartiality  of  their 
decisions,  and  inevitably  lowers  the  character  of  the 
judicial  body. 

2.  The  Relation  of  the  Courts  to  the  Executive 
and  to  the  Legislature.  Certainly  of  tenure  and  of 
compensation  guarantee  the  judiciary  against  being 
unduly  controlled  by  the  other  branches  of  the  govern- 
ment. The  question  next  arises,  whether  and  to  what 
extent  the  officers  of  the  legislative  and  executive 
departments  are  to  be  protected  from  the  power  of 
the  judiciary.  That  their  original  appointment  or  elec- 
tion is  not  made  by  the  judiciary  goes  without  saying. 
But  it  must  be  further  decided  whether,  while  they  are 
in  office,  the  legality  of  their  official  acts  is  to  be  sub- 
ject to  the  decision  of  the  courts.  Shall  the  judges  have 
power  to  decide  whether  the  legislature  or  the  execu- 
tive, or  any  part  of  the  executive,  has  acted  in  excess  of 
its  lawful  power?  To  an  American  unacquainted  with 
foreign  governments,  the  answer  seems  self-evident, 
for  the  principle  of  limited  constitutional  powers  and 
responsibility  before  the  courts  lies  at  the  basis  of  the 
American  system.  But  on  this  most  important  point  of 
public  law,  the  usage  of  modern  states  is  divided  between 
two  sharply  contrasted  systems.  In  the  United  States, 
the  Latin-American  Republics,  Great  Britain  and  her 
colonies,  the  officers  of  the  government  are  responsible 
before  the  law  courts.  The  complete  legal  immunity  of 
the  British  sovereign,  and  the  immunity  (except  by  im- 
peachmeat)  of  the  President  of  the  United  States,  are 


THE  JUDICIARY  AND  THE  ELECTORATE     211 

exceptions  of  a  special  nature  which  need  not  be  con- 
sidered in  this  connection.  On  the  other  hand,  it  is  the 
prevalent  usage  in  the  continental  countries  of  Europe 
that  the  ordinary  courts  of  law  have  no  power  to  ques- 
tion the  legality  or  decide  as  to  the  constitutiouality 
of  the  official  actions  of  the  legislative  and  executive 
officers.  A  closer  consideration  of  the  consequences  of 
these  antagonistic  principles  will  show  how  greatly  the 
relations  of  the  government  to  the  individual  citizens 
are  affected  thereby. 

The  case  of  the  British  Empire  is  less  complicated 
and  may  be  treated  first.  In  the  United  Kingdom  every 
servant  of  the  state  (except  the  king)  is  responsible 
for  his  actions  to  tlie  ordinary  courts  of  law.  '•  Every 
official,"  says  Mr.  Dicey,'  "  from  the  Prime  Minister 
down  to  a  constable  or  a  collector  of  taxes,  is  under  the 
same  responsibility  for  every  act  done  without  legal 
justification  as  any  other  citizen.  The  Reports  abound 
with  cases  in  which  official"  '  ^e  been  brought  before 
the  courts,  and  made,  in  t'  sonal  capacity,  liable 

to  punishment  or  to  the  pa}  ..,utof  damages  for  acts 
done  in  their  official  character  but  in  excess  of  their  law- 
ful authority."  Not  only  the  members  of  the  executive 
civil  service,  but  the  officers  and  men  of  tue  army  are 
individually  liable  before  the  ordinary  tribunals  for  any 
unlawful  acts,  even  if  performed  at  the  command  of  a 
superior  officer.  "  The  position  r"  -x,  soldier,"  says  the 
same  authority,  "  may  be,  both  in  theory  and  practice,  a 
difficult  one.  He  may,  as  it  has  been  well  said,  be  liable 
to  be  shot  by  a  court-martial  if  he  disobeys  an  order, 
and  to  be  hanged  by  a  judge  and  jury  if  he  obeys  it." 
'  Law  of  the  Constittttion,  chap.  vi. 


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212      THE  STRUCTURE  OF  THE  GOVERNMENT 

In  spite  of  the  apparent  anomaly  involved  in  the  last 
instance,  the  protection  afforded  to  individual  liberty 
by  this  responsibility  of  executive  officers  cannot  be 
overestimated.  In  the  case  of  the  British  legislature 
there  canuot,  of  course,  be  uuy  snou  thing  as  a  statute 
made  in  excess  of  j)ower.  For  since  the  Parliament 
(used  here  in  its  legal  sense  of  King,  Lords,  and  Com- 
mons) is  supreme,  every  statute  that  it  makes  is  legally 
a  good  statute  and  cannot  be  questioned  by  the  courts. 
But  the  legislative  enactments  of  any  minor  body 
(such  as  a  county  council)  are  always  subject  to  be 
passed  upon  by  the  courts,  and  perhaps  set  aside  on 
grounds  of  illegality. 

It  is  in  such  countries  as  the  United  States  that  the 
principle  of  judicial  decision  on  the  validity  of  the  ac- 
tions of  the  government  has  the  greatest  consequences. 
Here,  as  in  England,  the  officers  of  the  executive 
are  responsible  to  *'•"  jourts  for  their  official  actions. 
But  this  is  by  no  means  all.  For  since  the  national 
and  state  legislatures  are  given  by  the  Constitution 
only  a  certain  definite  and  limited  power,  it  becomes 
the  duty  of  the  courts  to  decide  whether  or  not  the 
legislature  in  the  making  of  any  statute  has  confined 
itself  to  the  powers  it  legally  possesses.  Where  such 
is  not  the  case  the  court  (though  it  cannot  abolish  or 
amend  the  statute  itself)  can  refuse  to  apply  it  in  the 
individual  case  before  it,  which  is  in  practice  equivalent 
to  declaring  the  statute  invalid.  Americans  are  apt  to 
regard  this  power  of  the  courts  as  a  necessary  Cv/nse- 
quence  of  a  written  constitution.  For  how  else,  it  might 
be  asked,  can  the  legislature  and  the  executive  be  duly 
confined  to  the  power  granted  them  ?   Logical  as  this 


7 


THE  JUDICIARY  AND  THE  ELECTORATE    213 
seems,  it  remains  true,  as  will  presently  be  shown  in 
the  cases  of  France  and  Germany,  that  the  existence 
of  a  written  constitution  is  not  always  accompanied  by 
this  revisional  power  of  the  ordinary  courts  of  law. 
That  such  an  institution  should  have  grown  up  in  the 
United  States  is  one  of  the  most  felicitous  features  of 
American  political  evolution.    The  germ  of  its  develop- 
ment  is  found  under  the  colonial  governments,  from 
which  in  the  last  resort  appeal  might  be  taken  against 
any  action  of  the  legislature  or  executive  of  the  colony 
to  the  king  in  council.    The  written  charters  that  had 
been  so  familiar  in  colonial  history  and  still  existed  at 
the  Revolution  in  Massachusetts,  Rhode  Island,  and 
Connecticut  prepared  the  way  for  written  constitutions 
limiting  the  powers  of  the  organs  of  government.   The 
severing  of  the  connection  of  the  colonies  and  the  crown 
rendered  it  necessary  to  substitute  something  for  the 
appellate  jurisdiction  of  the  king  in  council.   Even  be- 
fore the  making  of  the  federal  Constitution  (1787)  the 
judiciary  of  the  new  state  governments  had  begun  to 
occupy  this  field.    Several  decisions  of  state  tribunals 
are  recorded  in  which  acts  of  the  legislatures  are  de- 
clared unconstitutional.    In  the  report  of  a  Virginia 
case  in  1782  in  which  this  point  was  raised,  it  is  stated 
that  "  Chancellor  Blair  with  the  rest  of  the  judges  was 
of  the  opinion  that  the  court  had  power  to  declare  any 
resolution  of  the  legislature  or  of  either  branch  of  it 
unconstitutional  and  void.'  "    The  federal  Constitution 
of  1787  did  not  in  terms  lay  down  this  function  of  the 
courts ;  but  the  proper  sanction  for  it  is  found  in  art.  iii, 
§  2,  aud  in  art.  vi,  of  the  Constitution.   "  The  Judicial 
*  W.  W.  Willoughby,  St^eme  Court  of  the  United  State*,  chap.  v. 


214      THE  STRUCTURE  OF  THE  GOVERNMENT 


|i 


»»■ 


Power,"  it  is  laid  down,  "  shall  extend  to  all  cases  .  .  . 
arising  under  this  Constitution."  Moreover  "  this  Con- 
stitution and  the  Laws  of  the  United  States  which  shall 
be  made  in  pursuance  thereof  .  .  .  shall  be  the  supreme 
Law  of  the  Land  :  and  the  Judges  in  every  State  shall 
be  bound  thereby,"  The  case  of  Marbury  v.  Madison 
(1803),  in  which  an  act  of  Congress  was  declared  un- 
constitutional, definitely  established  the  precedent  for 
the  later  working  of  the  national  government.  The 
constitutional  relation  thus  established  between  the 
judiciary  and  the  other  branches  is  not,  however,  unique 
in  the  United  States.  In  the  Dominion  of  Canada,  for 
example,  the  judiciary  exercise  an  analogous  power  in 
their  interpretation  of  the  British  North  America  act, 
and  the  judges  under  the  federal  system  of  the  Aus- 
tralian conunonwealth  are  entrusted  with  a  similar 
function. 

Widely  contrasted  with  the  relation  in  which  the 
American  courts  of  law  are  thus  seen  to  stand  as  re- 
gards the  Congress  and  the  officers  of  the  executive,  is 
the  position  occupied  by  the  courts  in  the  chief  conti- 
nental countries  of  Europe.  The  latter,  as  we  have 
seen,  are  (with  the  exception  of  Hungary)  countries 
with  written  constitutions.  Yet  the  courts  of  law  are 
not  found  to  exercise  the  function  of  declaring  the 
acts  of  the  legislature  unconstitutional.  In  such  coun- 
tries as  France  and  Italy  this  is  not  so  surprising,  for 
these  are  not  federal  governments,  and  the  constitution 
in  these  cases  is  concerned  only  with  the  organization 
of  the  government,  and  with  the  protection  of  individ- 
ual liberty,  and  not  with  the  division  of  legislative 
power  between  central  and  local  authorities.  As  a  con- 


iri 


THE  JUDICIARY  AND  THE  ELECTORATE     216 

sequence  of  this  the  French  courts  do  not  question  the 
validity  of  a  statute.  Conceivably  a  French  statute 
might  be  grossly  unconstitutional ;  a  law,  for  instance, 
which  professed  to  abolish  the  republican  form  of  gov- 
ernment would  be  in  direct  violation  of  the  constitu- 
tion. But  in  practice  such  do  not  occur.  In  the  case 
of  the  German  empire,  which  is  federal,  and  which  has 
a  written  constitution,  one  would  expect  to  find  the 
courts  constantly  called  upon,  as  in  the  United  States, 
to  adjudicate  upon  the  constitutionality  of  state  and 
federal  laws.  In  point  of  fact  no  such  decisions  are 
given.  Isolated  cast's  have  occurred  in  which  the  courts 
(the  federal  as  well  as  state)  have  declared  certain 
statutes  of  the  minor  German  legislatures  to  be  in  vio- 
lation of  the  state  constitution.  But  the  legality  of 
imperial  statutes  once  made  passes  unquestioned.  The 
bulk  of  authority,  supported  by  the  declaration  of  the 
Reichsgericht  (or  imperial  court)  itself,  is  in  favor  of 
admitting  that  such  a  revisional  power  exists.  Other 
authorities  take  an  entirely  opposite  view.  Since  no 
law  of  the  imperial  legislature  goes  into  force  until 
officially  promulgated  by  the  emperor,  these  writers 
regard  the  promulgation  as  itself  supplying  the  neces- 
sary test  of  constitutionality.  Be  this  as  it  may,  the 
fact  of  the  matter  remains  that  imperial  statutes  are 
always  accepted  by  the  courts  as  valid.  More  note- 
worthy still  is  the  fact  that  in  the  federal  republic  of 
Switzerland  the  same  practice  prevails ;  indeed  it  is  a 
provision  of  the  Swiss  constitution  that  every  statute 
passed  by  the  federal  assembly  must  be  accepted  as 
valid.  ^ 

'  Constitution,  art  113. 


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216     THE  STRUCTURE  OF  THE  GOVERNMENT 

3.  Administrative  Law  and  Administrativa 
Courts.  But  the  absence  of  this  revising  power  of  the 
courts  is  not  the  only  point  in  which  Continental  practice 
is  at  variance  with  that  of  America.  The  whole  status  of 
executive  officers  before  the  law  is  different.  The  prin- 
ciple by  which  every  official  in  England  and  America 
is  respopsible  to  the  courts  for  his  official  actions  does 
not  apply.  On  the  Continent  this  form  of  liability  ig 
replaced  by  the  regulations  and  procedure  known  as 
administrative  law.'  Under  this  system  public  servants 
acting  in  their  official  capacity  are  not  subject  to  the 
jurisdiction  of  the  ordinary  tribunals,  but  can  only  be 
called  to  account  before  the  administrative  courts. 
These  are  specially  constituted  bodies  composed  for 
the  most  part  of  membei-s  of  the  executive.  In  France, 
for  example,  there  is  a  graded  service  of  administrative 
courts  which  exist  parallel  with  the  ordinary  tribunals. 
In  each  department  the  prefect  and  his  prefectoral 
council  (appointed  by  the  president.)  act  as  an  adminis- 
trative court.  Special  jurisdiction  is  exercised  by  the 
court  of  accounts,  councils  of  revision  (as  to  military 
recruiting),  colonial  courts  of  conflict,  and  certain  coun- 
cils for  public  instruction.  Final  jurisdiction  is  exer- 
cised by  the  council  of  state,^  a  body  nominated  by  the 

'  The  t  jrm  administrative  law  has  mure  than  one  sense ;  as  used  in 
France  (droit  administratif)  it  refers  not  only  to  the  law  covering 
the  relation  of  the  administrative  authorities  towards  private  citizens, 
but  also  to  the  whole  of  the  public  law  relatinj^  to  the  organization  of 
the  state.  In  English  it  is  more  commonly  used  in  the  former  restricted 
sense.  For  the  operation  of  administrative  law  in  continental  Europe 
the  student  may  consult  fSimonet,  Traiti  Eli'mentaire  de  Droit  Public 
(1897),  and  Goodnow,  Comparative  Administrative  Law. 

^  For  the  precise  composition  of  this  uouncil,  which  is  partly  an  ad- 
Tisory  executive  body  and  partly  a  judicial  tribunal,  consult  De  la  Bigne 


¥■ 


THE  JUDICIARY  AND  THE  ELECTORATE    217 

president  A  special  body  (the  tribunal  of  conflicts), 
made  up  of  equal  representation  from  the  two  kinds  of 
CO  rts,  together  with  the  ministers  of  justice  and  two 
added  members,  decides  on  cases  of  disputed  compe- 
tence. The  jurisdiction  of  administrative  courts  over 
official  actions  is  not  indeed  quite  without  exception. 
"  The  ordinary  courts  have  as  a  result  of  statutory  pro- 
vision the  entire  control  of  t.ie  matter  of  expropriation 
or  the  exercise  of  the  right  of  eminent  domain.  Again, 
arrests  made  by  the  administration  are  under  the  con- 
trol of  the  ordinary  courts  as  a  result  of  the  Penal  Code. 
It  is  true  also  that  where  the  government  or  a  depart- 
ment of  the  government  becomes  a  party  to  an  ordinarj* 
commercial  contract  the  jurisdiction  is  in  part  given 
to  the  ordinary  courts." »  But  in  the  main  the  state- 
ment holds  good  that  in  France,  and  in  constitutional 
countries  generally,  conflicts  betwer n  individuals  and 
the  administration  are  settled  by  the  administration 
itself. 

The  administrative  system  of  courts  originated  in 
France  with  the  extension  of  the  absolute  centralized 
monarchy,  which  tended  to  supplant  by  royal  officials 
the  older  local  tribunals.  The  Constituent  Assembly 
of  1789  expressly  adopted  the  principle  of  executive 
courts  for  passing  upon  the  acts  of  the  executive.  In 
doing  this  they  hoped  to  free  the  executive  from 
being  unduly  dependent  on  the  judicial  branch  of 
the  government,  and  found  the  warrant  for  their 
action  in   the  familiar  dogma  of   the   separation   of 

de  Villeuenve,  Eliments  dt  Droit  Constitutionnel  Franqais,  part  i,  chap, 
iii,  §  2,  art.  iii. 
'  Goodnow,  Comparative  Administrative  Law, 


N 


ii 


\H 


218     THE  STRUCTURE  OF  THE  GOVERNMENT 

powers.  "  The  constitution  will  be  equally  violated, 
if  the  judiciary  may  intermeddle  with  administrative 
matters  and  trouble  administrative  officers  in  the 
discharge  of  their  duties.  .  .  .  Every  act  of  the  courts 
of  justice  which  purports  to  oppose  or  arrest  the  action 
of  the  administration,  being  unconstitutional,  shall  be 
void  and  of  no  effect."  •  The  principle  thus  established 
has  been  adopted  by  the  successive  governments  that 
have  ruled  over  France.  Though  nominally  abolished 
at  the  inception  of  the  third  republic,  the  technical 
interpretation  of  the  decree  of  repeal  has  been  such 
as  to  render  it  ineffectual  in  practice.  Theoretically 
dependent  on  the  principle  of  distributed  powers,  it  has 
really  commended  itself  as  a  means  of  strengthening  the 
hands  of  the  executive  government.  Some  writers  have 
indeed  sought  to  show  that  the  adminisi  ative  courts 
themselves  afford  ?  v.!i:  protection  of  individual  lib- 
erty. But  the  bulk  of  the  evidence  seems  to  prove  that 
the  rights  of  the  individual  are  of  net  essity  sacrificed 
under  a  system  in  which  the  executive  may  be  at  one 
and  the  same  time  tlie  aggressor  and  the  judge  of  the 
aggression. 

4.  The  Electorate :  Evolution  of  So-called  Uni- 
▼ersal  Suffrage  in  Leading  Countries.  In  speak- 
ing of  the  executive,  legislative,  and  judicial  branches 
of  government,  reference  has  frequently  been  made  to 
the  election  of  the  •  fficials  of  these  departments  by  the 
people.  Let  us  therefore  conclude  the  discussion  of 
the  organs  of  government  by  a  brief  treatment  rf  the 
electorate.   The  body  thus  designated  is  not  identical 

'  Instructions  to  the  Law  of  Aug.  lG-24,  1700.   Cited  by  Goodnow, 
op.  cit. 


THE  JUDICIARY  AND  THE  ELECTORATE    219 

with  the  whole  botly  of  citizens.  A  citizen  means  any 
individual  member  of  a  state,  male  or  female,  who  owes 
it  allegiance  and  who  may  claim  its  protection,  hut  the 
electorate  only  includes  those  who  under  the  suffrage 
law3  of  that  particular  state,  enjoy  the  right  to  vote. 
The  electorate,  or  voters,  are  sometimes  spoken  of  as 
the  "  political  j)eoi)le,"  to  distinguish  them  from  those 
who  have  no  direct  legal  share  in  the  conduct  of  jnihlic 
affairs.  The  French  constitution  of  1791,  anxiojis  to 
harmonize  the  principle  of  popular  sovereignty  with 
a  very  restricted  suffrage,  spoke  of  their  two  classes 
as  "active  and  passive  citizens." 

The  right  of  the  general  Ixnly  of  the  people  to  vote 
for  representatives  to  govern  them  is  the  corner  stone 
of  the  free  institutions  of  Great  Britain  and  Amer- 
ica. The  origin  of  this  representative  government  lies 
hidden  at  the-  very  beginninrcs  of  Anglo-Saxon  in- 
stitutions. In  Saxi)n  England  we  find  every  town- 
ship sending  up  an  elected  reeve  and  four  niju  to 
represent  it  in  the  court,  or  general  meeting,  of  the 
shire.  It.  is  presumed  that  in  such  early  elections  all 
free  men  .a  part.  But  at  the  very  beginnings  of 
parliamentary  government  in  England  the  right  to 
vote  tended  to  restrict  itself  to  owners  of  land.  This 
was  only  natural  in  a  country  like  England  in  the  fif- 
teenth century,  where  wealth,  social  standing,  and 
ownership  of  land  were  almost  identical  terms.  A 
statute  of  Henry  VI  (1430)  limited  the  right  to  vote 
in  county  elections  to  residents  possessing  a  freehold 
worth  forty  shillings  a  year.'  The  value  of  money 
having  changed  since  the  fifteenth  century  in  a  ratio 

*  Anson,  Law  and  Custom  of  the  Constitution,  part  i,  chap,  v,  sec.  ii,  §  1. 


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220     THE  STRUCTURE  OF  THE  GOVERNMENT 

of  at  least  one  to  fifteen,  this  means  a  quite  high  pro* 
perty  <jtialifieatiun.  Although  the  clause  requiring 
residence  fell  into  ditiuse,  this  statute  governed  the 
franchise  in  the  English  counties  for  four  hundred 
years.  In  the  boroughs,  too,  the  suffrage,  though  vary- 
ing greatly  from  town  to  town,  rented  for  the  most 
part  either  on  the  possession  of  real  estate  or  the  pay- 
tnent  of  taxes.  Thus  it  came  about  that  in  the  course 
of  time  the  right  tu  vote  became  permanently  associated 
with  the  holding  of  property.  This  political  fact  was 
accompanied,  as  is  usually  the  case,  by  an  explanatory 
political  theory.  The  property-owner  was  viewed  as 
having  a  stake  in  the  community,  and  his  vote  was 
regarded  as  the  consequence,  not  of  his  personal 
citizenship,  but  of  his  proi>erty.  In  the  American 
states  in  the  early  years  of  their  independence  this 
theory  was  prevalent.  The  suffrage,  and  with  it  the 
right  to  be  elected,  rested  on  quite  restrictive  property 
qualifications.  Even  in  Kevolutionary  France  the  first 
constitution  (1791)  included  among  its  "active  citi- 
zens" only  those  who  paid  annually  a  "  direct  t.  :  equal 
at  least  to  the  value  of  three  days'  labor." 

But  the  democratic  ideas  which  worked  themselves 
out  in  the  philosophy  of  the  eighteenth  century  and  in 
the  French  and  American  revolutions  gradually  led  to 
the  dominance  of  a  quite  different  view.  This  was  the 
principle  of  (so-called)  "  universal  8uffrage,"or  the  right 
of  all  adult  capable  citizens  to  vote,  by  virtue  of  their 
being  such,  and  irrespective  of  the  holding  of  property. 
This  doctrine  was  proclaimed  by  the  Jacobins,  or  ex- 
treme republicans  among  the  French  revuiutiouists, 
though  even  among  these  only  a  minority  considered 


THE  JUDICIARY  AND  THE  ELECTORATE    ail 

that  women  should  share  in  this  '*  universal  right."  * 
Tbe  influence  of  the  same  theory  was  seen  in  America 
in  the  early  part  of  the  nineteenth  century,  when  the 
states  abandoned  the  principle  of  a  property  (pialiBca- 
tion,  and  moved  nearer  and  nearer  to  manluKMl  suf- 
frage. In  England  too,  where  abstract  political  theories 
have  but  little  weight,  the  practical  injustice  of  the 
restricted  franchise  led  to  the  long  agitation  culminat- 
ing in  the  Parliamentary  Reform  of  1832.  The  various 
governments  which  have  modeled  themselves  on  those 
of  Britain  and  the  United  States  have  adopted  also 
the  principle  of  universal  suffrage. 

In  the  democratic  countries  of  to-day,  the  people 
entitled  to  vote  represent  a  fraction  of  the  population 
ranging  from  one  fifth  downwards.  The  general  prin- 
ciple is  that  of  the  admission  to  the  polls  of  all  the 
adult  male  citizens  of  mental  and  moral  capacity.  Tbe 
principle  is  extremely  simple,  and  in  some  states  is 
applied  to  the  whole  commuuuy  by  a  single  and  com- 
prehensive law.  Thus,  for  example,  in  France,  the  law 
of  July  7, 1874,  grants  the  suffrage  to  all  male  citizens 
of  France  at  least  twenty-one  years  of  age.  Similarly 
the  right  to  vote  for  members  of  the  German  Reichstag, 
the  popular  house  of  the  imperial  legislature,  is  granted 
by  the  constitution  to  all  resident  male  citizens  of  the 
German  Empire  who  have  reached  the  age  of  twenty- 
five.^  In  the  United  States,  the  suffrage,  though  ex- 
tremely democratic  both  in  princii>le  and  practice,  is 
extremely  complex  in  its  legal  details.  The  Constitution 

For  tile  <|uuhUuii  of  leiuaie  .siilTi'age  during  tjie  Freiicti  liuvuiution, 
Anlard,  Hisloire poliliqve  de  la  Revolution  Frani^aise,  luay  be  consulted. 
'  Constitntion  of  the  Empire,  art.  20- 


I'll 


III 


222      THE  STRUCTURE  OF  THE  GOVERNMENT 


leaves  the  matter  in  the  hands  of  the  state  govern* 
ments ;  in  voting  for  members  of  the  federal  House  of 
Representatives,  the  voters  (Constitution,  art.  i,  §  2) 
"  in  each  State  shall  have  the  Qualifications  requisite 
for  Electors  of  the  most  numerous  Branch  of  tlie  State 
Legislature."  To  this  is  to  be  added  the  provision 
of  the  Fifteenth  Amendment:  "The  right  of  citizens 
of  the  United  States  to  vote  shall  not  be  denied  or 
abridged  by  the  United  States  or  by  any  State  on  ac- 
count of  race,  color,  or  previous  condition  of  servitude." 
The  suffrage  laws  of  the  separate  states,  though  all 
agree  in  excluding  persons  under  twenty-one  years  of 
age,  vary  very  much  in  reference  to  qualifications. 
Nine  states,  Wyoming  (1869),  Colorado  (1893),  Utah 
(1896),  Idaho  (1896),  Washington  (1910),  California, 
Oregon,  Arizona,  and  Kansas  (1912),  grant  suffrage 
to  women.  Some  states  g^ant  the  suffrage  to  aliens, 
otherwise  qualified,  who  have  declared  their  intention 
to  become  citizens.  The  term  of  necessary  residence 
in  the  state  previous  to  voting  varies  from  three  months 
(Maine)  to  two  years  (Alabama  and  others);  so  also 
does  the  requisite  term  of  residence  (if  any)  in  county, 
town,  or  precinct.  The  general  list  of  exclusions  com- 
prises insane  persons,  idiots,  and  felons.  Most  states 
exclude  paupers,  and  some  specifically  exclude  the 
Chinese  (California,  Nevada,  Oregon).  In  several  of 
the  Southern  states  peculiar  suffrage  laws  are  found 
which  are  intended  to  circumvent  the  Fifteenth  Amend- 
ment in  order  intlirectly  to  prevent  the  negroes  from 
voting.  Thus  in  Louisiana  the  voting  list  comprises 
all  citizens  of  the  United  States  who  are  able  to  read 
and  write,  or  who  own  three  hundred  dollars'  worth  of 


THE  JUDICIARY  AND  THE  ELECTORATE     223 

property  assessed  in  their  names,  or  whose  fathers  or 
grandfathers  were  entitled  to  vote  on  January  1, 1867. 
In  the  case  of  the  United  Kingdom  the  parliamen- 
tary franchise  is  of   the  most  complicated  character. 
The  reason  for  this  is  that  Parliament  has  never  seen 
fit  to  revise  the  existing  franchise  at  a  single  stroke 
and  to  repeal  all  previous  statutes  and  substitute  for 
them  a  single  and  uniform  suffrage  law.    Instead  of 
this  each  measure  of  parliamentary  reform  has  only 
partially   repealed   existing   legislation.    Three   great 
statutes  have  been  passed  in  the  nineteenth  century  in 
extension  of  the  right  to  vote.    The  Keform  Act  of 
1832  widened  the  old  county  franchise  by  including 
tenants  as  well  as  owners  of  land,  and  gave  the  borough 
franchise  to  rate-paying  householders  occupying  prem- 
ises worth  at  least  ten  pounds  a  year.    The  Reform  Act 
of  1867  further  extended  the  franchise.   Finally  the 
Representation  of  the  People  Act  of  1884  establishes 
in  England  and  Wales  both  in  towns  and  county  a  very 
democratic  suffrage :  a  person  entitled  to  vote  must  be 
of  the  male  sex,  at  least  twenty-one  years  of  age ;  must 
be  either  the  owner  or  the  lessee  of  land  or  premises  of 
a  certain  yearly  value,  the  sum  varying  according  to  the 
nature  of  the  tenure ;  or  else  must  occupy  or  be  a  lodger 
in  fixed  premises  of  a  certain  yearly  value,  or  on  which 
the  local  rates  have  been  paid.  The  qualifications  for 
the  parliamentary  franchise  in  Scotland  and  Ireland 
are  similar  to,  though  not  identical  with,  those  in  Eng- 
land.  In  addition  to  this,  persons  may  be  qualified  by 
virtue  of  the  remnants  oi  e;'rlier  unrepealed  laws; 
they  may  for  example  be  voters  by  virtue  of  being 
born  and  resident  freemen  of  certain  towns,  or  liv- 


r 


1" 


224    THE  STRUCTURE  OF  THE  GOVERNMENT 

erymen  of  one  of  the  city  companies  of  the  city  of 
London,  or  as  graduates  on  the  electoral  roll  of  Ox- 
ford, Cambridge,  Dublin,  or  London,  etc.  The  list  of 
excluded  persons  comprises  aliens  not  naturalized,  idi- 
ots, convicted  felons,  and  members  of  the  peerage. 
For  fuller  information  reference  may  be  made  to  the 
first  volume  of  Sir  William  Anson's  "  Law  and  Custom 
of  the  Constitution."  The  complex  historical  aspect  of 
the  present  English  sufiErage  and  its  practically  demo- 
cratic operation  is  highly  characteristic  of  English 
political  institutions.  Little  heed  is  taken  of  the  logical 
requirements  of  abstract  political  theory  provided  that 
the  practical  operation  is  not,  to  an  appreciable  degree, 
repugnant  to  the  demands  of  common-sense  justice. 

5.  CriticiBin  of  Existing  Sjrstems ;  the  Case  of 
Women,  of  Negroes,  etc.  From  what  has  been  said 
of  existing  suffrages  we  may  now  turn  to  consider  the 
validity  of  the  theory  of  so-called  universal  suffrage. 
In  the  first  place  it  is  to  be  noted  that  the  suffrage  in 
question  is  by  no  means  universal.  It  nowhere  includes 
more  than  a  minority  of  the  population.  It  omits 
everywhere  children  and  minors,  and  persons  of  un- 
sound mind  and  of  proven  criminality.  It  leaves  out 
almost  everywhere  the  female  half  of  the  population. 
That  the  right  to  vote  cannot  be  absolutely  and  liter- 
ally universal  requires  no  proof  :  no  amount  of  politi- 
cal dogma  could  make  it  appear  reasonable  thai  a 
ballot  should  be  deposited  by  a  two-year-old  child  or 
by  an  incapable  idiot.  That  the  principle  of  exclusion 
must  be  adopted  is  an  actual  if  not  a  logical  necessity. 
It  is  extremely  important  to  duly  appreciate  this  fact. 
Universal  suffrage  everywhere  omits  a  large  number 


THE  JUDICIARY  AND  THE  ELECTORATE    223 

of  citizens,  and  the  reason  is  in  every  case  that  the  ex- 
eluded  classes  are  composed  mainly  of  persons  who,  in 
the  opinion  of  those  who  vote,  are  not  fitted  to  exer- 
cise the  right  of  voting.  It  is  to  be  observed  that  the 
excluded  class  is  not  in  reality  composed  entirely  of 
persons  unfit  to  vote.  No  one  would  t-laiui  that  no 
youug  men  of  twenty  are  ever  fit  to  vote,  and  that  all 
men  over  twenty-oup  •  always  fit  to  vote.  The  exclu- 
sion merely  means  >-  ' '  e  average  persons  under 
twenty-one  have  not  the  icvjulred  capacity,  and  that 
those  over  twenty-one  have  it.  It  appears,  then,  there 
is  no  such  thing  in  theory  or  in  practice  as  an  abso- 
lute  and  universal  right  to  vote.  Nor  is  the  exclusion 
of  any  class  of  citizens,  in  and  of  itself,  a  violation  of 
any  abstract  law  of  political  justice.  Every  such  ex- 
clusion must  rest  for  its  justification  on  the  question 
whether  the  excluded  persons  are  —  taken  on  the  aver- 
age —  not  capable  of  the  political  judgment  required 
in  voting. 

The  general  view  thus  obtained  may  be  applied  to 
two  of  the  prominent  questions  of  the  time  in  regard 
to  the  suftrage,  the  right  of  women  and  of  negroes  to 
exercise  a  vote.  The  political  rights  of  women  have 
been  much  agitated  during  the  last  fifty  years,  but  as 
yet  no  very  great  advance  has  been  made  in  the  direc- 
tion of  female  suffrage.  In  the  United  States,  as  has 
been  said  above,  nine  of  the  states  grant  to  women  on 
equal  terms  with  men  the  full  suffrage  both  for  local 
and  state  elections.  In  addition  to  this  women  vote  in 
school  elections  in  thirty-one  states ;  in  some  states  they 
vote  on  all  tax  questions  ;  in  Iowa  and  Montana  when 
a  vote  of  the  citizens  is  taken  on  a  proposed  issue  of 


M 


1  ■  J 
i  : 


THE  STRUCTURE  OF  THE  GOVERNMENT 

municipal  bonds,  and  in  New  York  state  by  a  law  of 
1901  women  owning  assessed  village  property  have  a 
similar  voice  in  a  local  referendum.    As  against  this  it 
is  to  be  recorded  that  the  proposal  to  admit  women  to 
the  full  suffrage  has  recently  been  defeated  in   New 
Hampshire    (1903)    and   in    several    Western   states 
(as  in  South  Dakota,  1898)  and  in  three  states  in  1912. 
The  right  to  vote  for  members  of  the  national  legisla- 
tures is  not  granted  to  women  in  the  chief  countries  of 
Europe  except  in  Finland,  and  in  Italy  to   widows 
owning  property.   In  England  women  cannot  vote  at 
parliamentary  elections,  but,  if  qualified,  may  vote  in 
any  local  elections.  Women  are  granted  the  full  suf- 
frage in  New  Zealand  and  in  the  states  of  Australia, 
and  vo^Q  on  the  same  terms  as  men  in  the  elections 
for  the  Senate  and  House  of  Representatives  of  the 
Federal  Parliament  of  Australia.^ 

Historically  considered   the  exclusion  of  women  is 
only  a  part  of  the  general  economic  and  legal  posi- 
tion of  dependence  in  which  women  have  been  placed. 
Indeed   the  word  "exclusion"  is   hardly   applicable. 
What  has  happened  has  been  negative  rather  than  pos- 
itive.  Until  quite  recent  times  only  a  very  small  part  of 
tV"  men  of  the  community  had  the  right  to  vote.    It  is 
more  accurate  to  say  that  the  women  have  never  been 
admitted  than  that  they  have  been  expressly  excluded. 
The  arguments  of  John  Stuart  Mill  and  others  in  favor 
of  female  suffrage  have  turned  partly  on  abstract  jus- 
tice—  the  claim  of  every  person,  as  a  person,  to  vote  — 
and  partly  on  the  idea  that  women  are  in  the  main  as 
well  qualified  as  men,  or  at  any  rate  sufficiently  quali- 
»  Sea  "  Political  Woman  In  Australia,"  Ninetunth  Century,  toI.  IvL 


THE  JUDICIARY  AND  THE  ELECTORATE     227 

fied.  The  first  contention  seems  quite  invalid :  the 
principle  of  exclusion  is,  as  has  been  shown,  a  necessary 
one.  The  second  contention  remains  still  a  debatable 
point.  As  against  these  arguments  it  has  been  urged 
that  women,  being  mentally  inferior  to  men  in  those 
particular  aptitudes  required  for  the  jtroper  exercise 
of  political  rights,  had  better  be  excluded.  It  is  also 
claimed  that  women  are  for  tlie  most  part  dependent 
for  their  political  convictions  on  the  opinions  of  a  hus- 
band, father,  or  other  male  relation;  they  are  thus  al- 
ready represented  in  an  indirect  fashion,  and  to  give 
them  a  vote  would  unfairly  duplicate  the  voting  power 
of  their  male  reiutions.  On  these  grounds  a  distinction 
is  sometimes  made  between  the  claims  of  married  and 
unmarried  women. 

The  other  vexed  question  relatin."' '    the  suffrage  is 
that  of  permitting   the  negro  race  i  ^    Every  one 

knows  that  the  Southern  states  —  the  >  .  e  people  of 
the  Southern  states  —  would  never  have  conferred  even 
a  nominal  voting  power  on  the  black  race  except  by 
compulsion.  This  compulsion  has  been  found  in  the 
amendment  to  the  Constitution  already  mentioned.  Its 
adoption  was  due  partly  to  the  desire  to  make  use  of 
the  negio  vote  for  political  purposes,  and  partly  to  the 
force  of  i)ublic  opinion  generated  by  the  idea  that 
abstract  principles  of  justice  gave  the  negro  a  riglit  to 
the  suffrage.  There  has  resulted  the  rather  absurd 
situation  wliereby  many  persons  in  the  United  States 
have  been  ardent  champions  of  the  supposedly  inherent 
political  rights  of  the  blacks  while  willing  to  apply  an 
entirely  different  criterion  to  the  case  of  women,  both 
the  white  and  the  black.    Women  are  excluded  as  unfit 


m 


228     THE  STRUCTURE  OP  THE  GOVERNMENT 

to  vote,  and  blacks  are  included  on  the  ground  that 
nobody  can  be  unfit  to  vote.  The  exact  extent  of  polit- 
ical  capacity  of  these  two  classes  is  a  matter  that  would 
admit  of  some  discussion ;  but  it  seems  hardly  rea- 
sonable to  think  that  an  illiterate  and  in  many  ways 
debased  negro  population  can  have  a  political  claim 
superior  to  that  of  educated  and  intelligent  American 
women.  Unhappily  a  false  and  hopelessly  abstract  view 
of  political  rights  and  the  rigidity  of  the  federal  Con- 
stitution prevents  a  rectification  of  the  political  error 
made  in  admitting  the  negroes  to  the  suffrage.  In  prac- 
tice the  Southern  states  have  found  various  means  to 
render  the  negro  vote  largely  illusory.  But  legally  the 
anomaly  persists. 

6.  Representation  of  Minorltiea.   A  question  of 
especial  interest  in  reference  to  voting  is  the  repre- 
sentation of  minorities.    If  the  members  of  a  national 
legislature  were  all  elected  out  of  the  whole  community 
on  one  "general ticket,"  —each  voter  voting  as  many 
times  as  there  were  places  to  be  filled,  —  it  is  clear  that 
there  would  be  a  minority  group  of  voters  who  elected 
none  of  their  candidates.   So  glaring  an  illustration  of 
the  "  unrepresented  minority  "does  not  in  practice  occur. 
The  need  of  representing  at  least  a  part  of  the  peoi)le 
in  each  district  naturally  leads  to  the  division  of  the 
whole  country  into  districts  from  each  of  which  a  can- 
didate, or  a  group  of  candidates,  is  elected.    Bu*.  even 
with  such  a  division  into  districts,  a  number  of  the 
people  in  each  throw  away  their  votes  on  a  candidate 
not  elected  and  thus  remain  in  a  sense  unrepresented. 
This  evil  may  be  aggravated  if  those  in  power  so  divide 
up  the  election  districts  as  to  make  the  most  of  the 


THE  JUDICIARY  AND  THE  ELECTORATE     229 

votes  of  the  adherents  of  their  own  party  and  to  make 
the  least  of  the  votes  of  their  opponents.  This  is  the 
process  known  as  gerrymandering,  and  unfortunately 
only  too  familiar  in  nuMlern  i)olitic8.  At  times  it  is 
effected  by  so  allotting  the  electoral  districts  that  the 
adverse  voters  will  be  too  few  everywhere  to  carry  any 
district.  If  this  is  impossible  the  districts  are  so  con- 
trived as  to  "  bunch  together  "  the  hostile  voters,  and 
thus  it  results  that  when  they  do  carry  a  district,  they 
carry  it  by  a  needlessly  large  majority,  and  so  practi- 
cally lose  a  lot  of  voters. 

Much  attention  has  been  given  to  the  problem  of 
how  to  represent  the  minority,  and  various  schemes 
have  been  proposed  for  this  purpose,  and  to  some 
extent  adopted.  Of  these  a  few  may  be  mentioned. 
The  most  noteworthy  of  all,  historically,  is  the  scheme 
of  Mr.  Thomas  Hare,  which  attracted  considerable 
attention  in  England  in  the  middle  of  the  nineteenth 
century.'  This  was  the  plan  of  "self-made  constitu- 
encies." Instead  of  dividing  the  country  into  districts, 
it  was  proposed  that  any  candidate  should  be  elected 
for  whom  sufficient  votes  were  cast  anywhere  in  the 
country.  The  number  required  was  to  be  found  by 
dividing  the  number  of  voters  by  the  number  of  seats 
in  Parliament  to  be  filled.  By  this  niea.  <  any  par- 
ticular minority  group,  instead  of  being  scattered  in 
district  constituencies,  and  everywhere  swamped,  could 
combine  themselves  into  a  united  vote.  The  scheme, 
however,  demands  too  elaborate  a  political  activity  on 
the  part  of  each  voter  to  be  at  all  practical.* 

'  Thomas  Hare,  The  Election  of  Repreuntatives,  1859. 

'  For  criUcum  see  Bagehot,  English  Constitution,  chap,  vi 


i 


1^ 


230     THE  STRUCTURE  OF  THE  GOVERNMENT 

Another  method  of  minority  representation  is  the 
plan  of  "limited  voting."   This  is  used  whenever  sev- 
eral candidates  are  to  be   elected  to  form  a  board 
or  council;   it   would   noi   apply  to  districts  where 
only  one  candidate  is  to  be  elected.    Each  voter  is 
allowed  to  vote,  not  for  as  many  candidates  as  there 
are  places  to  fill,  but  only  a  limited  number  of  times. 
For  example,  in  the  elections  to  a  city  council,  there 
may  be  twelve  places  to  fill,  but  each  voter  has  only 
seven  votes.   The  result  is  to  elect  seven  members  of 
one  political  party,  and  five  of  the  other.   No  one  party 
could  elect  all  unless  strong  enough  to  divide  its  ad- 
herents into  two  distinct  voting  groups,  and  still  defeat 
the  other  party.    Such  a  system  meets  the  case  of 
representing  a  second  party,  but  may,  of  course,  leave 
a  further  majority  unrepresented.    Similar  to  this  is 
the  cumulative  vote.   In  this  plan,  where  a  number  of 
))er8ons  are  to  be  elected,  each  voter  may  vote  once  for 
each  of  several  candidates,  or  give  all  his  votes  to  one. 
Thus,  if  twelve  candidates  had  to  be  chosen,  a  very 
feeble  minority  could  get  a  representative  if  each  per- 
son gave  all  his  votes  to  the  same  candidate. 

In  practically  all  elections  it  happens  that  the  elected 
candidate  gets  more  than  enough  votes  to  elect  him. 
Only  in  rare  instances  will  he  happen  to  get  just  the 
necessary  odd  vote  and  no  more.  Tlie  surplus  votes, 
therefore,  again  constitute  an  unrei>resented  minority. 
To  meet  this  difficulty  there  has  been  contrived  tlie 
device  of  "proportional  representation."  Here  the 
voter  is  called  upon  to  indicate  not  only  his  choice  of 
a  candidate,  but  the  names  he  would  choose  as  a  second 
or  third  choice,  and  so  on.   The  surplus  votes  of  each 


THE  JUDICIARY  AND  THE  ELECTORATF     231 

elected  candidate  are  then  handed  on  to  the  voter's  sec- 
ond choice,  or,  if  not  needed  there,  to  the  third,  etc. 
A  necessary  feature  of  proportional  representation  is 
the  formation  of  constituencies  returning  more  than 
one  member,  without  which  of  course  there  would  be 
no  recipient  for  the  surplus  vote.  Proportional  repre- 
sentation, in  one  form  or  another,  h:is  already  been 
iutrfxluced  in  lielgium,  Switzerland,  Denmark,  Sweden, 
in  certain  minor  European  governments,  and  in  the 
senatorial  and  certain  other  elections  of  the  Union  of 
South  Africa.  Two  chief  forms  may  be  distinguished. 
Under  the  "  list "  system,  where  several  representatives 
are  to  be  elected  in  one  constituency  each  political 
party  or  group  makes  up  a  list  of  its  candidates  in 
order  of  favor.  According  to  the  proportion  of  the 
vote  of  the  parties,  the  whole  or  part  of  each  list  is  de- 
clared elected.  The  "single  transferable  vote"  is  more 
generally  advocated  in  England  and  America.  Under 
this  plan  each  voter  marks  the  candidates  in  the  order 
of  his  preference.  But  the  difficulty  lies  in  deciding 
which  are  to  be  the  ballots  that  elect  the  first  candi- 
date and  which  are  those  from  wliich  the  second  choice 
is  to  be  transferred.  In  practice  this  can  be  done  only 
by  hazard  of  the  drawing  of  the  ballots  from  the  box, 
or  by  some  complicated  method  of  coefficient  values 
attached  to  first,  second,  and  siiecessive  votes. 

Aquite  distinct  form  of  minority  representntion.direi'tod  towardf 
a  particular  political  end,  is  found  in  the  elections  of  the  kingdom 
of  Prussja.  It  is  used  iu  the  elections  for  tlie  Prussian  parliament, 
though  liOt,  of  course,  in  those  for  the  imperial  Reichstag.  The 
voters  are  divided  into  three  classes,  not  numerically,  but  accord- 
mg  to  the  taxes  that  they  pay.  If  the  total  taxation  of  the  district 
amounts  to  a  certain  sum,  then  the  first  class  is  made  up  of  the 
nohest  propepty.owner8  in  sufficient  number  to  represent  one 
tiard  of  the  taxes.   The  second  class  represents  the  next  third  of 


1 1  It  1 


I 


i  I 


:mm 


232     THE  STRUCTURE  OF  THE  GOVERNMENT 

the  twes,  and  the  third  cliue  the  reft.  E»oh  cIms  ehooKs  Rn  equal 
number  of  "  electors '*  for  an  electoral  oolleste,  and  this  latter 
makes  the  actual  selection  of  the  ineniberi  of  Parliament.  It  can 
be  seen  at  once  that  the  two  upper  classes,  voting  together, 
though  representing  only  a  minority  of  the  people,  can  abnolutely 
outvote  the  third.  Much  the  same  plan  is  adopted  in  Prussian 
local  elections.  To  American  ideas  this  system  is  grossly  unjust. 
The  Socialist  party  in  Prussia  for  some  time  abstriued  from  vot- 
ing  in  Prussian  elections  rather  than  accept  a  vote  on  such  condi- 
tions. It  can  only  be  defended  on  the  principle  that  property,  not 
the  citizens  personally,  is  the  thing  to  be  represented  in  a  legis- 
lative body. 

READINGS  SUGGESTED 

Dioey,  A.  V.,  Law  of  the  Constitution  (4th  edition,  1893),  part  ii, 

chap.  xii. 
Willoughby,  W.  W.,  The  Supreme  Court  of  the  United  States 

(1890),  chap.  ▼. 
Schouler,  J.,  Constitutional  Studies  (1897),  part  iii,  chap.  It. 
Bradford,  G.,  The  Lesson  of  Popular  Government  (1899),  Tol.  i, 

chap.  i. 

FURTHER  AUTHORITIES 
Von  Hoist,  H.,  Constitutional   Law  of  the  United   States  of 

America  (1887). 
Goodnow,  F.,  Comparative  Administrative  Law  (1897). 
Taswell-Langmead,  English  Constitutional  History  (5th  edition, 

1896). 
De  la  Eigne  de  Villeneuve,  EWments  de  Droit  Constitutionnel 

Frangais. 
Amdt,  A.,  Staatsrecht  des  Deutschen  Reichcs  (1901). 
H^ie,  Les  Constitutions  de  la  Francs  (1880). 
Freeman,  E.  A.,  Comparative  Politics,  Lecture  V  (1873). 
Stubbs,  W.,  Constitutional  History  of  p:ngland  (4th  edition,  1883). 
Ridges,  E.  W.,  English  Coustitutioual  Law  (1905). 
Brown,  W.  J.,  The  New  Democracy  (18,  9). 
Hare,  T.,  The  Election  of  Representatives  (1859). 
Walpole,  S.,  The  Electorat      nd  the  Legislature  (1881). 
Mill,  J.  S.,  The  Subjection  of  Women  (1869). 
Mill,  J.  S.,  Representotive  Gorernment  (1876). 


CHAPTER  V 


FEDERAL  GOVERNMENT 

1.  ImportAnoe  of  the  Puderal  Principle;  its  Hiatorical  Development. 
—  2.  The  Different  Kinds  of  Federations.  —  :^.  Sovereif;nty  in  a 
Federal  State. —  4.  Utility  of  the  Federal  Principle  in  effecting  a 
Comproiiiise.  —  5.  Distributiou  of  Power  in  Federal  States.  —  0.  Con- 
clusions. 

1.  Importance  of  the  Federal  Principle;  ita 
Biatorical  Development.  The  subject  of  federal 
government  is  so  important  that  it  may  well  merit  a 
separate  chapter.  The  origin  and  growth  of  federation 
and  the  purpose  it  has  served  in  the  evolution  of  the 
past  are  among  the  most  interesting  topics  of  historical 
study.  Of  the  political  problems  of  our  own  time 
none  are  of  more  vital  bearing  than  the  relation  of  the 
local  and  central  powers  in  a  federal  system.  In  the 
development  of  modern  states  the  principle  of  federa* 
tion  has  played  a  prominent  part.  It  has  supplied  the 
requisite  cohesive  power  to  bind  together  the  common- 
wealths that  compose  the  United  States,  and  the  un- 
equal monarchies  and  free  cities  that  are  joined  into 
the  German  Empire.  Mexico,  Brazil,  and  Switzerland 
are  federal  republics.  The  British  Empire  is,  as  a 
whole,  a  unitary  state,  but  its  two  most  important  de- 
pendencies, the  Dominion  of  Canada  and  the  Common- 
wealth of  Australia,  are,  when  considered  separately, 
federal  systems  closely  resembling  that  of  the  United 
States.  As  far  as  our  present  political  vision  reaches, 
it  seems  as  if  any  attempt  to  create  a  universal  state 


f   I 

HI 
I  ■■ 


li 


^    ♦ 


m 


ami 


284     THE  STHUCTCRE  01   THE  GOVERNMENT 

must  proceed  along  the  li  i^s  of  lederation.  It  may 
perhaps  be  reasonably  thou^ljt  that  the  txperi-jnce 
now  being  gained  in  the  cm  uction  of  composite 
governments  on  a  fede.-^l  .)  i  >  i^    iipplying  to  civilized 

the  making  of  tiie 


.<  r 


mankind  the  reipiisite  i 
world  state  of  future  agt 

It  is  impossible  to  ovi     nti  i  :  •'    the  im;><>rtaMt  part 
that  has  been  played  by  I  ^^  .     i  ii  in    h '  '  Utoiy  of 
political  growth.   Speakir^  ,  vo:u>ly  ■  "     -i  tlie  chief 
features  in  the  evolutioi.  •  t"  eu  i;.-  ?    ,jvernment  has 
been  the  extension  of   tli.    area  <    v     ed  by  a  single 
political  unit  or  state.  Th'   ext«M!v  i.  ..u^  not  of  course 
proceeded  always  in  a  continuous  chronological  course. 
Modem  Switzerland  is  but  a  diminutive  state  when 
compared  with  the  Roman  Empire.  Yet  it  is  true  in 
the  main  that  one  of  the  most  notable  and  most  essen- 
tial fa<^tors  of  political  progress  has  been  the  increasing 
size  of  the  territory  brought  into  a  single  scate.'   To 
accomplish  this,  two  great  historical  forces  have  been  at 
work.    Of  these  one  is  the  principle  of  conquest,  ab- 
sorption, and  expansion.    The  growth  of  the  French 
monarchy  and  the  spread  of  British  dominion  illustrate 
this.    The  other  has  been  the  principle  of  deliberate 
federal  union,  whereby  a  basis  of  compromise  is  af- 
forded permitting  the  political  junction  of  previous 
states  which  are  too  closely  cc»nnected  by  situation, 
language,  and  customs  to  remain  apart,  but  which  are 
too  unlike  in  area,  local  customs,  etc.,  to  permit  of  com- 
plete amalgamation.   Of  these  two  methods  the  one  is 
the  path  of  peace,  the  other  is  the  path  of  war.    No 
lasting  union  of  the  great  states  of  the  world  can  now 

1  See  also  part  i,  chap  iii,  §  5,  above. 


FEDERAL  GOVERNMENT 


333 


be  expected  from  the  process  of  conquest.  If  united  at 
all  it  must  be  only  by  means  uf  a  uniun  whieli  wi  1  de- 
stroy neither  national  pride  nor  national  autokuniy. 

In  its  broadest  sense  the  term  fuderatior  indicates 
any  form  of  union  cnturvd  into  by  two  or  more  inde- 
pendent states.  Numerous  hiHtoricid  examples  at  once 
suggest  themselves.  At  the  very  beginning  of  {ralitical 
history  we  have  the  famous  Acha'an  league.  This  was 
originally  a  defensive  alliance  of  twelve  cities  of  the 
Peloponnesus,  but  in  its  later  shape  as  revised  in  the 
third  and  se<*ond  centuries  (u.  c.  281-146X  this  "  after- 
growth of  Hellenic  freedom  "assumed  a  more  elaborate 
character.  It  included  Corinth,  Megura,  and  many 
other  important  city  states  of  southern  Greece.  Each 
city  retained  the  control  of  its  own  internal  regulation, 
but  surrendered  into  the  hands  ri  the  league  the  con- 
trol of  foreign  relations  and  war.  "There  was,"  says 
Professor  Freeman,'  "an  Achsean  nation  with  a  national 
assembly  ...  no  single  city  could  of  its  own  author- 
ity make  peace  or  war.*'  Had  it  not  been  for  the  rise 
of  the  world  power  of  the  Roman  Enii)ire,  such  a  league 
might  have  supplie^l  a  means  of  converting  the  Greek 
city  state  into  a  territorial  national  state.  In  later  his- 
tory the  short-lived  combinations  of  Italian  cities  in 
the  thirteenth  and  fourteenth  centuries  may  perhaps 
be  spoken  of  as  federations.  A  more  consjiicuous  ex- 
arnpK^  is  seen  in  the  growth  ''f  nuulern  Switzerland, 
Here  the  forest  districts  of  Lri,  Schwyz,  and  Unter- 
walden,  still  nominally  subject  to  the  emperor,  banded 
themselves  together  for  pmteution  in  1201.  The  league 
thus  formed  grew  in  extent  and  pov/er.  Other  districts 
1  Freeman,  Fetltral  Government. 


I 


ft 


!, 


236     THE  STRUCTURE  OF  THE  GOVERNMENT 

and  the  free  cities  of  Bern  and  Ziirich  were  joined  to 
it.  The  defeat  of  Austria  in  the  end  of  the  fourteenth 
century  gave  it  a  practical  independence,  which  was 
finally  confirmed  by  the  treaty  of  Westphalia  (1648). 
In  the  confederation  thus  formed  each  member  retained 
its  separate  independence,  mutual  protection  being  the 
only  purpose  of  the  union.   Though  for  a  time  amalga- 
mated by  the  interference  of  the  French  llevolutionists 
into  a  republic,  "one  and  indivisible,"  it  was  not  until 
the  changes  effected  by  the  constitutions  of  the  nine- 
teenth century  (1848  and  1874)  that  Switzerland  lost 
the  appearance  of  a  defensive  league  of  separate  states.' 
A  similar  league  was  that  existing  between  the  in- 
dependent states   of  North  America  under  the  Arti- 
cles of  Confederation  (1781-1789).    Here  each  state 
was  a  separate  body  politic.   The  only  form  of  com- 
mon control  was   exercised  through  the  Congress,  a 
body  of  delegates  which  had  no  power  to  compel  the 
states  to  its  will,  and  no  power  to  command  or  to  tax 
the  individual   citizens  of  the  thirteen  states.     The 
federal  Constitution,  made  in  1787  and  put  in  force 
in   1789,  established   in  the   place  of  this  a  single 
federal  state,  in  which  the  central  government  was 
brought   directly  in  contact   with   tlie  citizens.     The 
course  of  the  nineteenth  century  has  witnessed  several 
federations  of   historical   importance.     Of   these,  tlie 
Swiss  constitutions  of  1848  and  1874,  the  federation 
of  the  provinces  of  Canada  into  the  Dominion  (1867), 
the  creation  of  the  North  German  Confederation  (1867) 
and  the  German  Empire  (1871),  together  with  the 
recent  federation  of  the  commonwealth  of  Australia 

'  Sidgwiok,  Developinent  of  European  Polily,  Lecture  XXIX. 


FEDERAL  GOVERNMENT  237 

(1900),  are  the  most  salient  examples.  Other  countries, 
too,  such  as  Mexico  and  Brazil,  have  uilopttil  the  fed- 
eral system  of  government,  not  as  a  means  of  increas- 
ing their  area,  but  as  a  method  of  harmonizinj:  local 
and  national  interests. 

2.   The  Different  Kinds  of  Federations.    When 
we  consider  the  various  forms  of  union  by  which  sep- 
arate states  may  be  joined  together,  it  is  clear  that  they 
present  a  graded  series  of  increasing  closeness.  At  one 
end  of  the  scale  is  the  offensive  and  defensive  alliance 
entered  into  by  sovereign  states.    Of  this  nature  was 
the  famous  Family  Compact  of  the  eighteenth  century, 
between  the  Bourbon  monarchies  of  France  and  Spain. 
Such  a  union  is  extremely  illusory  in  its  nature,  as,  in 
the  absence  of  any  joint  organ  of  government,  it  has 
no  "sanction"  or  compelling  force  behind  it.    More 
advanced  than  this  are  confederate  t;  ,)es  such  as  the 
Achaean  League,  the  German  Confederation  of  1815, 
or  the  Southern  Confederacy.     In  this  each  partici- 
pant state  retains,  in  name  at  any  rate,  its  sovereign 
character.     It  may  happen  that  in  such  a  union  of 
states  the  formal  act  of  union  declares  itself  perpetual 
and  at  the  same  time  declares  that  each  state  retains 
its  sovereignty.  This  is  quite  inconsistent,  for  it  implies 
that  each  state  is  free  to  leave  the  union,  and  at  the 
same  time  bound  to  remain  in  it.    Such,  however,  is 
the  case  with  the  American  Articles  of  Confederation 
(in  force  from  1781  till  1789)  and  the  constitution  of 
the  Southern  Confederacy.   Beyond  this  type  of  union 
lies  the  federation  par  excellence^  —  the  federal  state,* 

'  Profeaaor  iiurgess  claimg  that  the  term  "  federal  state"  is  not  nd- 
miMible,  on  the  e:round  that  a  statu  is  a  unity.   But  while  admitting  that 


;    I 


\         l' 


w 


238     THE  STRUCTURE  OF  THE  GOVERNMENT 

a  new  unit  composed  out  of  previously  sovereign  states, 
now  united  to  form  a  new  sovereignty,  but  each  retain- 
ing its  own  political  sphere  independent  of  the  legal 
power  of  the  central  government.    Such  is  the  nature  of 
the  present  federal  union  of  the  United  States.  Beyond 
this  again  might  be  distinguished  what  could  be  called 
an  amalgamation,  or  complete  fusion  by  agreement.    It 
differs  from  the  expansion  of  a  single  state  by  conquest 
of  territory,  in  that  the  participant  members  enter  into 
the  amalgamation  or  amalgamated  state  of  their  own 
free  will.   The  best  examples  are  found  in  the  compo- 
sition of  the  United  Kingdom  by  the  act  of  union  of 
England  and  Scotland  in  1707,  and  of  Great  Britain 
with  Ireland  in  1800.    These  unions  were  effected  by 
similar  statutes  passed  by  the  separate  parliaments  of 
the  countries  concerned.    The  unions  declared  them- 
selves to  be  made  on  certain  stated  terms  and  condi- 
tions.  But  the  process  differed  from  federation  in  that 
in  each  case  the  parliaments  which  made  the  unions 
then  went  out  of  existence  in  favor  of  a  new  parlia- 
ment which  was  legally  sovereign,  and  not  bound  by 
the  conditions  of   union.     That  this  is  more  than  a 
theoretical  view  of  the  case  is  seen  in  the  fact  that 
the  British  Parliament  in  18G9  abolished  the  estab- 
lished (Episcopal)    church    in    Ireland,  whose  main- 
tenance was  one  of  the  terms  of  the  union  of  1800. 
A  similar  case  of  amalgamation  is  seen  in  the  "  fusion  " 
of  the  separate  Italian  states  into  the  kingdom  of  Italy 
(1859-60) .    The  product  of  such  a  process  is  a  unitary 
and  not  a  federal  state. 

it  is  illoffical  to  speak  of  a  confederate  stito,  it  seems  reasonable  to  use 
"  federal  sUte  "  to  mean  a  state  of  which  the  orjjanization  is  federal. 


FEDERAL  GOVERNMENT  239 

The  different  kinds  of  united  governments  thus  indi- 
cated have  afforded  ground  for  elaborate  classification 
of  the  various  species  of  confederacies  and  federal 
states.  This  has  particularly  interested  the  modern 
German  writers  on  public  law,  some  of  whom  distin- 
guish a  great  many  subdivisions.  Such  classifications 
have  been  undertaken  by  Laband,' Jellinek,''and  others. 
Jellinek  distinguishes,  in  the  first  place,  virtual  unions, 
such  as  Canada  and  Australia  (legally  part  of  the  uni- 
tary British  state)  and  legal  unions.  The  latter  he  sub- 
divides into  (1)  protectorates,  etc.,  (2)  unions  of  a  supe- 
rior and  inferior  state  (Staaten8taat),seen  in  the  case  of 
Turkey  and  Egypt,  (8)  monarchial  unions,  in  which  two 
independent  states  are  joined  under  a  common  sove- 
reign, this  again  being  subdivided  into  real  and  per- 
sonal, according  to  whether  the  union  is  organic  and 
deliberate  (Sweden  and  Norway,  before  1905)  or  acci- 
dental (England  formerly  with  Hanover),  (4)  the  con- 
federacy (Staa^onbund),  and  (5)  the  federal  state  (Bun- 
desstaat).  Other  classifications  are  still  more  minute. 
Of  all  these  fluctuating  subdivi^  )ns  American  and 
English  writers  are  generally  inclined  to  throw  aside 
everything  except  the  distinction  between  a  confeder- 
acy and  a  federal  state.  This  is  a  vital  point  in  ptiblic 
law  and  requires  some  explanation.  A  confederacy  is 
not  a  single  state.  It  is  a  collection  of  independent 
sovereign  bodies  united  on  stated  terms  for  certain 
purposes.  Each  of  them  is,  legally,  free  to  withdraw 
from  the  confederacy  when  it  pleases.  A  confederacy 
cannot  therefore  be  permanent  and  indissolvable,  for  if 

'  Staaturecht  des  Dfulsrhen  Reirhrs. 
'  Dat  Recht  Jes  Moderuen  Staates. 


240     THE  STRUCTURE  OF  THE  GOVERNMENT 
it  were  so  then  the  sovereignty  of  the  oomponent  states 
would  disappear.    A  federal  state  is  a  single  state.    Its 
subordinate  parts  may  have  been,  tlvugh  not  of  neces- 
»ity,»  sovereign  states  previous  to  the  union ;  they  can- 
not  be  so  after  the  formation  of  the  federation.    Such  a 
union  becomes,  legally,  indissolvablc  so  far  as  the  ac- 
tion of  the  separate  state  governments,  or  of  the  central 
government,  is  concerned.    It  could  only  be  dissolved 
by  the  constitutional  amending   process,  where  such 
exists.    The  interpretation  put  on  the  Constitution  of 
the  United  States  by  the  seceding  states  of  the  South 
would  have  made  it  a  confederacy.    The  interpretation 
\   put  upon  it  in  the  North  made  it  a  federal  state. 

3.  Sovereignty  in  a  Federal  State.    This  leads 
at  once  to  the  much-disputed  question  of  the  sove- 
reignty in  a  federal  state.    Around  this  centred  the 
great  secession  issue  between  the  Northern  and  South- 
em  states,  for  the  retention  by  a  component  state  of  its 
sovereign  power  carries  with  it  of  course  the  right  to 
withdraw  from  a  federation  of  which  it  is  a  part.   Let 
us  consider  the  question  6rst  of  all  apart  from  the 
particular  case  of  the  United  States.    If  what  has  been 
said  above  is  correct,  it  follows,  by  definition,  that  the 
creation  of  a  federal  state  annihilates  the  sovereignty  of 
the  component  states,  —  not  limits  it  or  divides  it,  but 
annihilates  it.    For  sovereignty  either  is  or  is  not.    But 
in  the  new  state  the  sovereignty  does  not  lie  in  the 
central  government ;  it  lies  in  the  body,  wherever  and 
whatever  it  may  be,  which  has  power  to  amend  the 

1  Compare  the  caw  of  the  repiiMin  of  Brazil;  the  constitution  of 
1891  puts  the  provinces  on  a  federal  basis,  but  they  were  not  previously 
independent  states. 


FEDERAL  GOVERN AIENT 


241 


constitution.     Legally  speaking,  this  sovereign  body 
can  entirely  abolish  the  federation  and  restore  each 
member  of  it  to  its  original  independence.    This  is  not 
the  same  as  secession,  but  it  carries  with  it  the  conse- 
quence that  such  a  union  is  not  legally  indissolvable. 
In  a  confederacy,  on  the  other  hand,  each  state  is  still 
a  sovereign  state.    There  is  properly  no  confederate 
law.    Any  common  regulations  adopted  by  a  central 
body  of  the  confederacy,  and  binding  on  the  citizens 
of  all  the  states,  are  law  to  any  such  citizen  because 
adopted  as  law  by  his  own  state.    Where  law  exists,  a 
state  exists.    Where  a  state  exists  then  it  has  sovereign 
power.'  It  follows  then  that  confederacy  and  secession 
are  one  and  the  same  term  in  point  of  public  law.   In 
actual  fact  secession  resolves  itself  into  a  question  of 
force.    Switzerland  was  an  acknowledged  confederacy 
from  1815  until  1848.    Yet  when  the  seven  Roman 
Catholic  c  -i-ons  undertook  to  secede  from  it  (1847) 
they  were  forced  back  into  the  confederation  at  the 
point  of  the  sword. 

In  the  United  States  the  controversy  did  not  turn 
on  the  difference  between  a  confederacy  and  a  federal 
state.  It  turned  on  the  question  whether  the  United 
States  was  the  one  or  the  other.  On  this  point,  as 
Professor  Goldwin  Smith  has  said,  the  "  constitution 
proved  itself  a  '  Delphic  oracle.'  "  The  language  of  the 
Constitution,  especially  when  read  in  the  light  of  the 
antecedent  history  of  the  confederacy  of  1781-89 
(which  was  virtually  dissolved  by  the  "  secession  "  of 
eieven  of  its  thirteen  states')  admitted  of  either  inter- 

»  When  the  CoMtitution  went  into  force  (March  1,  1789)  two  atotei, 
Rhode  laland  and  North  Carolina,  were  not  aa  yet  in  the  Union.  They 


242     THE  STRUCTURE  OF  THE  GOVERNMENT 

pretation.   But  apart  from  the  question  of  secession, 
many  American  writers,  while  admitting  the  federal 
union  to  be  permanent,  have  taken  quite  a  different 
view  of  sovereignty  from  the  one  here  indicated.   This 
u  the  theory  of  dual  or  divided  sovereignty.    In  ac- 
cordance with  this  view  the  sovereign  power  in  a  fed- 
eral union,   such   as   the  American   republic,  is  not 
located  in  any  single  authority  but  is  divided  or  dis- 
tributed between  the  federal  and  the  state  government. 
Such  a  theory  is  of  course  totally  at  variance  with  the 
whole  conception  of  sovereignty  explained  in  an  earlier 
chapter.    It  is  difficult  to  regard  it  as  anything  else 
than  a  confusion  of  sovereignty,  which  is  complete  and 
absolute,  with  constitutional  power,  which  may  be  of 
any  degree  of  limitation.    If  the  federal  and  state  gov- 
ernments represent  a  "  division  of  sovereignty,"  then 
the  three  branches  of  the  federal  government  represent 
a  further  subdivision,  and  so  forth.    In  spite,  however, 
of  its  inconsistency,  the  theory  of  dual  sovereignty 
has  found  illustrious  champions.    President  Madison 
devoutly  believed  in  it.   "  It  is  difficult,"  he  wrote,  "  to 
argue  intelligibly  concerning  the  compound  system  of 
government  in  the  United  States  without  admitting 
tiie  divisibility  of  sovereignty."   The  American  courts 
of  the  same  period  declared,  "  The  United  States  are 
sovereign  as  to  all  the  powers  of  government  actually 
surrendered.    Each  state  in  the  Union  is  sovereign  as 
to  all  the  powers  reserved."  ' 

',  •were  certainly  no  longer  in  the  confederacy,  which  had  ceased  to  exist. 
i  Yet  the  articles  had  declared  that  "  the  Union  shall  be  perpetual " 
.    (art  13). 

*  For  the  subject  of  sorereignty  under  the  Amerioan  constitution, 


FEDERAL  GOVERNMENT  243 

4.  Utility  of  the  Federal  Principle  in  effecting 
a  Compromise.   Returning  from  the  question  of  the 
location  of  sovereignty  to  the  general  aspect  of  the  fed- 
eral state,  it  may  be  noted  that  the  peculiar  utility  of 
the  federal  principle  in   political  construction  lies  in 
the   spirit   of  compromise  which  it  embodies.   Every 
small  community  or  state  is  driven  by  the  need  of  pro- 
tection to  seek  for  a  union  with  its  fellows.   But  a  form 
of  association  which  annihilates  its  own  traditions  of 
independent  self-government  naturally  runs  counter  to 
the  sympathies  of  its  citizens.   Still  more  is  this  the 
case  if  the  communities  to  be  united  are  of  unequal 
magnitude.   In  this  case  a  complete  amalgamation  into 
a  unitary  state  would  practically  mean  the  absorption 
of  the  minor  states  into  the  large  ones.  The  position  of 
New  Jersey,  Delaware,  and  Connecticut  at  the  time  of 
the  making  of  the  Constitution  was  of  this  sort.   Still 
more  unequal  was   the  federation   long  contemplated 
among  the  German  states,  and  finally  accomplished  by 
the  formation   of   the   federal  empire   in    1871.   The 
principality  of  Schaumberg-Lippe  has  an  area  of  131 
square  miles,  and  a  population  of  about  40,000  persons ; 
the  kingdom  of  Prussia  has  an  area  of  nearly  135,000 
square  miles  and  a  population  of  35,000,000.   In  all 
such  cases  as  this  the  federal  system  supplies  the  means 
of  creating  a  single  state,  combining  the  whole  powers  of 
its  members  for  international  defense  and  for  matters 
of  general  interest,  without  sacrificing  the  individual 
life  and  political  susceptibilities  of  the  component  parts. 
Even  among  "states"  of  relative  equality,  as  in  the 

the  gtndent  may  consnlt  Merriam,  History  of  the  Theory  of  Sovereignty 
tince  Rousieau,  from  which  the  above  qaotationa  are  token. 


244     THE  STRUCTURE  OF  THE  GOVERNMENT 

case  of  the  majority  of  the  forty-five  states  of  the  Union, 
the  federal  system  has  the  advantage  of  permitting  the 
legislation  of  each  to  accord  with  differences  of  environ- 
ment caused  by  climate,  racial  elements,  local  custom, 
and  antecedents.   In  the  United  States,  more  than  any- 
where else  in  the  world,  full  advantage  has  been  taken 
of  the  possibilities  of  the  federal  principle.   Its  history 
is  largely  a  history  of  federations.   In  the  earliest  times 
of  colonial  history  we  have  the  formation  of  Connecti- 
cut by  the  federal  union  of  its  towns,  and  the  establish- 
ment in  1643  of  the  New  England  federation  uniting 
the  northerly   colonies    for   mutual    protection.   The 
quarrel  with  Great  Britain  in  the  eighteenth  century 
brought  the  thirteen  colonies  into  a  union,  which,  after 
passing  through  the  preliminary  stages  of  the  Continen- 
tal Congress  and  the  abortive  confederacy  of  1781,  was 
finally  consolidated  into  the  present  federal  republic. 
The   principle   of    political  growth   and  constitution 
adopted  in  1789  has  go'  jrned  the  whole  evolution  of 
the  United  States  during  the  nineteenth  century. 

&  Distribution  of  Power  in  Federal  States. 
So  much,  then,  for  the  historical  and  political  aspect  of 
the  federal  principle.  Let  us  turn  now  to  consider  the 
important  subject  of  the  division  of  power  between 
federal  and  subordinate  authorities.  It  is  not  necessary 
in  this  connection  to  take  account  of  any  of  the  confed- 
eracies or  federal  governments  previous  to  the  forma- 
tion of  the  Constitution  of  the  United  States.  In  these 
only  the  moat  elementary  and  necessary  powers  were 
allotted  to  the  central  government.  But  the  federations 
of  1789  and  of  the  nii  -ieenth  century  offer  an  interest- 
ing series  which  may  be  studied  with  a  view  to  discov- 


FEDERAL  GOVERNMENT  245 

ering  the  teaching  of  experience  in  regard  to  the  rela- 
tive position  of  central  and  subordinate  authorities. 
We  may  here  best  begin  by  stating  the  general  princi- 
ples of  apportionmi  at  of  power.  The  prime  historical 
motive  of  federation  has  been  the  need  of  defense.  It 
is  therefore  first  of  all  requisite  that  the  federal  govern- 
ment should  have  control  of  the  military  and  naval 
power.  Closely  connected  to  this  is  the  necessity  that 
in  its  dealings  with  outside  states  the  federation  should 
conduct  itself  as  a  unit.  The  control  of  foreign  rela- 
tions must  therefore  rest  with  the  central  power. 
Since  neither  foreign  relations  nor  war  can  be  con- 
ducted without  finau.  ial  support,  it  is  further  necessary 
that  the  federal  government  should  have  some  power 
of  taxation  of  the  individual  citizens.  It  is  not  enough 
that  it  should  be  able  to  requisition  the  component 
commonwealths  for  the  money  it  needs :  this  was  amply 
seen  in  the  collapse  of  the  finances  of  the  old  Confeder- 
ation (1781-89).  To  cover  urgent  and  temporary  needs, 
the  financial  power  must  include  the  power  to  borrow. 
These  three  functions — the  conduct  of  war  and  de- 
fense, the  control  of  foreign  affairs,  and  the  power  to 
raise  money  —  are  the  prime  essentials  without  which 
no  federal  state  can  exist. 

As  a  second  class  of  governmental  duties  may  be 
ranked  all  those  which  are  only  effective  in  so  far  as 
uniformly  and  generally  performed.  Of  this  nature 
are  the  control  of  coinage,  the  regulation  of  patents 
and  copyrights,  and  the  conduct  of  the  postal  service. 
Third  in  the  list  will  stand  a  variety  of  public  affairs 
in  which,  though  uniformity  is  not  absolutely  essential, 
it  is  nevertheless  largely  contributory  to  national  pro- 


I 


846     THE  STRUCTURE  OF  THE  GOVERNMENT 

gress.  In  this  connection  may  be  mentioned  the  control 
of  the  more  extensive  transportation  facilities  (those 
which  constitute  "  interstate  commerce  "),  —  railroads, 
canals,  telegraphs,  etc.,  — the  regulation  of  the  banking 
system,  and  the  establishment  of  a  general  tariff.   The 
latter  is  a  somewhat  anomalous  case.   Federal  control 
of  a  tariff  is  apt  to  find  its  place  among  the  powers  of 
the  central  government  from  financial  reasons  sooner 
than  from   economic.   The  tariff  offers  a  convenient 
and  somewhat  surreptitious  form  of  taxation.   Though 
not  theoretically  a  requisite  power  of  the  central  gov- 
ernment, it  is  in  practice  of  great  importance :  tariff 
walls  are  a  serious  impediment  to  the  consolidation 
of  national  life.   To  illustrate  this  one  may  refer  to 
the  tariff  bickerings  of  the  thirteen  states  under  the 
Articles  of  Confederation,  or  to  the  case  of  the  German 
states  united  in  the  confederation  of  1815.    In  this  last 
instance  not  only  was  each  state  a  separate  tariff  area 
from  the  others,  but  the  single  states  were  subdivided, 
Prussia  was  a  political  unit,  but  contained  sixty- 
seven  different  tariff  areas.'   As  a  fourth  class  may  be 
placed  the  debatable  category  of  subjects  whose  allot- 
ment to  the  federal  or  component  government  is  a  mat- 
ter of  opinion  and  must  depend  on  the  circumstances 
of  the  case.    Here  the  conspicuous  examples  are  seen 
in  the  regulation  of  marriage  and  divorce  and  in  the 
control  of  public  education.   Beyond  this  as  the  fifth 
and  final  class  lie  those  duties  which  certainly  ought 
to  be  left  to  the  constituent  governments  to  perform. 
Here  again  opinion  may  differ,  but  public  works  of 

1  Sm  in  thia  ooimeotioD  S«ignoboi,  PMical  History  of  Eurtpe, 
ehap.  ziT. 


FEDERAL  GOVERNMENT 


S47 


merely  local  scope,  pablio  charitiei,  the  regulation  of 
the  liquor  question,  etc.,  are  generally  included. 

With  '^is  outline  let  us  now  briefly  compare  the 
actual  distr.'bution  of  powers  in  the  chief  federations 
under  our  notice.  We  may  begin  by  quoting  the  legis- 
lative powers  assigned  to  Congress  by  the  Coustitution 
of  the  United  States. 

"The  Congress  shall  have  Power  to  lay  and  collect 
Taxes,  Duties,  Imposts  and  Excises,  to  pay  the  Debts 
and  provide  for  the  common  Defence  and  general  Wel- 
fare of  the  United  States  ;  but  all  Duties,  Imposts  and 
Excises  shall  be  uniform  throughout  the  United  States ; 

"To  borrow  money  on  the  credit  of  the  United 
States; 

"  To  regulate  Commerce  with  foreign  Nations,  and 
among  the  several  States,  and  with  the  Indian  Tribes; 

"To  establish  a  uniform  Kule  of  Naturalization, 
and  uniform  Laws  on  the  subject  of  Bankruptcies 
throughout  the  United  States ; 

"  To  coin  Money,  regulate  the  Value  thereof,  and  of 
foreign  Coin,  and  to  fix  the  Standard  of  Weights  and 
Measures ; 

"  To  provide  for  the  Punishment  of  counterfeiting 
the  Securities  and  current  Coin  of  the  United  States ; 

"  To  establish  Post  Offices  and  post  Roads ; 

"  To  promote  the  Progress  of  Science  and  useful 
Arts  by  securing  for  limited  Times  to  Authors  and  In- 
ventors the  exclusive  Right  to  their  respective  Writ- 
ings and  Discoveries ; 

"  To  constitute  Tribunals  inferior  to  the  Supreme 
Court; 

**  To  define  and  Punish  Piracies  and  Felonies  com- 


■  I   / 

!    ?/ 

■  «:       \ 
t 

i 
i 


248     THE  STRUCTURE  OK  THE  GOVERNMENT 

mitted  on  the  high  Seas  and  Offences  against  the  Law 
of  Nations ; 

**  To  declare  War,  grant  Letters  of  Marque  and  Re- 
prisal, and  make  Rules  concerning  Captures  on  Land 
and  Water ; 

"  To  raise  and  support  Annies,  but  no  Appropria- 
tion of  Money  to  that  Use  shall  be  for  a  longer  Term 
than  two  Years ; 

**  To  provide  and  maintain  a  Navy ; 

**  To  make  Rules  for  the  Government  and  Regulation 
of  the  land  and  naval  Forces ; 

"  To  Provide  for  calling  forth  the  Militia  to  execute 
the  Laws  of  the  Union,  suppress  Insurrections  and  re- 
pel Invasions ; 

*'  To  provide  for  organizing,  arming,  and  disciplin- 
ing, the  Militia,  and  for  governing  such  Part  of  them 
as  may  be  employed  in  the  Service  of  the  United 
States,  reserving  to  the  States  respectively,  the  Ap- 
pointment of  the  Officers,  and  the  Authority  of  training 
the  Militia  according  to  the  Discipline  prescribed  by 
Congress ; 

"To  exercise  exclusive  Legislation  in  all  Cases  what- 
soever, over  such  District  (not  exceeding  ten  Miles 
square)  as  may,  by  Cession  of  particular  States,  and 
the  Acceptance  of  Congress,  become  the  Seat  of  the 
Government  of  the  United  States,  and  to  exercise 
like  Authority  over  all  Places  purchased  by  the  Con- 
sent of  the  Legislature  of  the  State  in  which  the 
Same  shall  be,  for  the  Erection  of  Forts,  Magazines, 
Arsenals,  Duck- Yards,  and  other  needful  Buildings;  — 
And 

"To  make  all  laws  which  shall  be  necessary  and 


FEDERAL  GOVEENMENT  jmq 

proper  for  carrying  into  Execution  the  foregoing  Pow. 
•n,  and  all  crther  Powers  vested  by  this  Constitution  in 
the  Government  of  the  United  States,  or  in  any  De- 
partment  or  Officer  thereof."  » 

It  will  be  seen  at  once  that  apart  from  the  special 
provisions  relating  to  the  Indians  and  the  District  of 
Columbia,  tl»«re  are  no  jiowers  granted  here  that  have 
not  been  given  to  tlie  central  goveruni.'nt  in  all  tlu  later 
federations.  The  national  government  receives  by  this 
article  but  little  more  than  the  necessary  powers  of 
government.  The  residual  power  of  .,'ovenuiieiit  —  the 
authority  to  control  those  things  for  whidi  ii*.  special 
provision  is  made —is  elsewhere  explicitly  wiiMicld 
from  it. 

Let  us  place  in  immediate  comparison  witlj  this  ili. 
allotment  of  p  ver  between  the  federal  and  proviiuial 
governments  in  the  Dominion  of  Canada.  The  ba.^is  of 
the  constitution  of  Canada  is  a  statute  of  the  British 
Parliament  named  the  British  North  America  Act  of 
1867.  The  provisions  in  respect  to  the  distribution  of 
power  are  in  the  ninety-first,  uinety-second,  and  ninety- 
third  sections  of  the  act.  They  are  particularly  inter- 
esting in  the  present  connection  because  they  are  based 
on  the  arranjjement  made  in  the  Constitution  of  the 
United  States  revised  in  the  light  of  subsequent  j)olit- 
ical  experience.  In  addition  to  the  powers  possessed 
by  Congress,  the  legislative  power  of  the  Dominion 
Parliament  extends  to  the  criminal  law,  marriage  and 
divorce,  interest,  and  the  raising  of  money  by  any 
mode  or  system  of  taxation.  Other  things,  such  as 
banking,  etc.,  are  included  which  are  not  explicitly 

»  Art.  i,  §  8. 


ii 


260     THE  STRUCTURE  OF  THE  GOVERNMENT 

granted  to  the  Congress  and  to  which  the  federal  an- 
thority  in  the  United  States  only  reaches  by  interpreta- 
tion of  implied  powers.  In  addition  to  this  the  statute 
enacts  that  the  Dominion  Parliament  has  legislative 
power  "  in  relation  to  all  matters  not  coming  within 
the  classes  of  subjects  by  this  act  assigned  exclusively 
to  the  legislatures  of  the  Provinces."  The  amount  of 
federal  power  expressly  granted  contrasts  strongly  with 
the  section  of  the  American  Constitution  quoted  above. 
Even  as  compared  with  the  power  of  Congress  when 
expanded  by  the  doctrine  of  implied  powers,  the  con- 
trol of  the  Dominion  over  such  items  as  the  crimi- 
nal law  represents  a  considerable  increase  of  federal 
authority. 

Closely  following  upon  the  making  of  the  Canadian 
constitution,  we  ^j.ye  the  constitutions  of  two  impor- 
tant federal  states  still  in  operation.  These  are  the 
constitution  of  the  German  Empire  (1871)  and  that 
of  Switzerland  (18T4).  In  each  of  these  the  scope  of 
the  central  power  is  far  wider  than  in  that  of  the 
United  States.  In  Germany  the  constitution,  together 
with  an  amendment  of  December  20,  1873,  grants  to 
the  federal  government  the  control,  not  only  of  the 
things  within  the  jurisdiction  of  Congress,  but  also  the 
criminal  law,  civil  law  and  judicial  procedure,  banking, 
medical  practice,  railroads  (except  in  Bavaria),  the 
regulation  of  the  press,  of  trades,  insurance  (includ- 
ing workingmen's  insurance  and  pension  laws),  and 
other  matters.'  In  Germany  the  legislative  scope  of 
the  Central  government  is  vastly  greater  than  in  Amer- 
ica. Its  action  in  the  administrative  direction  is  less, 
'  Imperial  Conatitution,  art.  it. 


FEDERAL  GOVERNMENT 


251 


since  the  principle  of  decentralization  is  here  adopted 
and  the  federal  measures  (tariff,  etc.)  are  carried  out 
by  the  authorities  of  the  constituent  governments.  The 
action  of  the  central  government  is  further  narrowed 
in  practice  by  the  use  that  is  made  of  the  principle  of 
concurrent  jurisdiction.  In  many  of  the  matters  men- 
tioned above  the  power  of  the  federal  government  is 
not  exclusive.  Where  the  federal  government  has  not 
seen  fit  to  act,  the  states  are  free  to  exercise  a  legisla- 
tive power.  This  applies  for  example  to  the  control  of 
railroads,  medical  practice,  the  criminal  and  civil  law, 
etc.  The  federal  jurisdiction  is  only  exclusive  where 
from  the  nature  of  the  case  it  must  be  so  (such  as  rais- 
ing of  money  on  the  credit  of  the  empire)  or  where  it 
is  expressly  stated  (for  example,  the  taxation  of  im- 
ports).' To  prevent  conflict  of  authority  it  is  provided 
that  a  federal  law  always  overrides  a  statute  of  one  of 
the  constituent  parts  of  the  empire.  This  same  princi- 
ple of  concurrent  jurisdiction  obtains  of  course  in  the 
United  Staws,  but  to  a  much  less  extent ;  most  of  the 
powers  granted  to  Congress  are  forbidden  to  the  com- 
monwealths, but  in  some  matters,  such  as  bankruptcy 
laws,  they  may  act  in  the  absence  of  federal  legislation.' 
The  present  constitution  of  Switzerland  (1874),  to- 
gether with  the  amendments  since  added,  shows  a  wide 
range  of  federal  power.  "  The  legislative  authority  of 
the  national  government,"  says  Professor  A.  Lawrence 
Lowell,'  "  is  much  more  extensive  in  Switzerland  than 


'  Imperial  Constitution,  art.  zzxv. 

•  This  snliject  ia  well  treated  by  Burgfess,  Political  Science  and  Con- 
ttitutional  Law,  vol.  ii,  chap.  vii. 

'  Qovernments  aiid  Parties  in  Continental  Europe,  vol.  ii,  ch»p.  xL 


252     TIIE  STRUCTURE  OF  THE  GOVERNMENT 

in  this  country,  £or  in  addition  to  the  powers  conferred 
upon  Congress  it  includes  such  subjects  as  the  regula- 
tion of  religions  bodies  and  the  exclusion  of  monastic 
orders,  the  manufacture  and  sale  of  alcoholic  liquors, 
the  prevention  of  epidemics  and  epizootics,  the  game 
laws,  the  construction  and  o})eratiuu  of  all  railroad-s, 
the  regulatiou  of  all  labor  in  factories,  the  compulsory 
insurance  of  workmen,  the  collectiuu  of  debts,  and  the 
whole  range  of  commercial  law."  To  this  may  be 
added  the  fact  that  the  federal  government  has  the 
power  (under  the  constitution)  to  compel  the  can- 
tons to  establish  compulsory  secular  education,  gratu- 
itous in  the  primary  schools.  The  Swiss  government 
has,  however,  no  power  to  levy  direct  taxes. 

As  a  concluding  instance  let  us  notice  the  position 
of  the  central  power  in  the  recent  federation  of  the 
Australian  colonies.  The  Commonwealth  of  Australia, 
considered  apart  from  its  con  ruction  with  the  Dritish 
Empire,  is  a  federal  unit  made  of  six  separate  "  states." ' 
Its  constitution,  like  that  of  Canada,  is  found  in  a  statute 
of  the  British  Parliament  enacted  in  1000,  uuder  the 
title  of  the  Couunooweakh  of  Australia  Constitution 
Act.  The  legislative  power  of  t'.«  federal  parliament 
is  laid  down  in  great  ("etail.-  It  includes  all  the  essen- 
tial and  virtually  essential  powers  already  treated,  such 


*  Riphtly  or  wrongly  the  Australians  have  adopted  the  term  states  as 
the  official  designation  of  the  c(>ni|K)iient  parts  of  their  federation. 
Since  the  whole  Iio<ly  is  oDicially  called  the  l^omniunwealtli.  we  tiiid 
the  terminology  used  by  Professor  llurgess  and  otht-r  American  writers 
exactly  reversed. 

*  Cunatitution  Act.  part  v,  §  51  and  §  52.  A  good  commentary  is 
given  by  Profewor  Uarrison  Muore,  Tlie  Commonwealth  of  Ayutralxa, 
chap.  V. 


FEDERAL  GOVERNMENT  253 

as  defense,  taxation,  postal  service,  tariffs,  interstate 
commerce,  etc.    In  addition  to  this  the  federal  author- 
ity is  explicitly  declared    to  extesad   to  bounties  on 
production  or  export,  insurance  (odier  than   state  in- 
surance), marriage  and  divorce,  invalid  and  old-age 
pensions,  foreign  corpomtions,  acquiHJtiou  of  state  rail- 
ways (with  consent  of  the  state),  railway  construction 
(with  similar  consent),  railroad  control  even  without 
consent  if  needed  for  military  purposes,  conciliation  of 
industrial  disputes,  if  not  confijaed  to  a  single  state, 
immigration,  influx  of  criminals,  and  other  minor  mat- 
ters.   It  is  interesting  to  notice  the  use  that  k  made  of 
the  principle  of  concurrent  jurisdiction.    Tli*i  German 
constitution  had,  as  we  have  seen,  <lelil>erately  adopted 
this   plan.    The  British  North  America  Act,  on    tbe 
other  hand,  tries  to  indicate  the  powers  of  Doniinioa 
and  provincial  governments  as  exclusive  of  one  another; 
in  practice  this  has  led  to  confusion.    In  Australia  only 
a  few  of    the  jwwers  are   expressly  declared   excla- 
sive  (§52).    In  the  majority  of   instances  the  state 
government  may  act  where  the  federal  government  has 
not  done  so.    But,  as  in  the  German  Empire,  "  VVhen 
the  law  of  a  state  is  inconsistent  with  a  law  of  the 
commonwealth    the  latter  shwl!    prevail."     This  last 
provision  must  not  be  misunderstood.    The  law  of  the 
commonwealth  in  question  must  not  transcend  the  con- 
stitutional power  of  the  federal  parliament,  otherwise 
its  a])plication  can  be  d«.  hired  invalid  by  the  courts, 
just  as  in  America. 

6.  Conclusions.  From  the  foregoing  cowiparison  of 
the  chief  federations  of  the  nineteenth  century,  impor- 
tant conclusions  are  to  be  drawn.    There  is  manifest 


1^ 

m~ 


254     THE  STRUCTURi:  OF  THE  GOVERNMENT 

throughout  the  tendency  to  entrust  the  central  or  na- 
tional government  with  a  wider  and  wider  sphere  of 
authority.  For  this  several  reasons  are  to  be  assigned. 
In  the  first  place  it  represents  a  process  that  is  alto- 
gether natural,  and  which  may  rightly  be  spoken  of 
as  organic.  The  units  of  the  federation  onee  brought 
into  contact  begin  to  grow  together,  and  to  be  knit 
into  a  more  and  more  united  body.  Tke  original  jeal- 
ousy and  particularism  of  the  sep»raite  parts  are  grad- 
ually merged  into  the  wider  outlook  thait  accompanies 
a  larger  national  life ;  the  central  govenMBcnt  rf  the 
federation  becomes  a  part  and  parcel  of  e»r4i  in^^d- 
ual  citizen,  and  enlists  in  its  support  a  broad«r  patri- 
otism than  narrow  adherence  to  the  interest*  of  his 
section  of  the  community.  Where  the  sens*'  of  natu- 
ral greatness  is  involved  constitutional  limitations  can 
be  overridden  with  poblic  approval ;  the  addition  of 
Louisiana  to  the  territory  of  the  United  States  at 
mice  suggests  itself  in  illustration.  An  equally  potent 
factor  leading  to  the  extension  of  federal  power  is 
found  in  the  material  conditions  of  mwlern  life.  Rapid 
transportation,  the  telegraph,  and  the  evolution  of 
production  and  commerce  on  a  scale  undreamed  of 
at  the  making  of  the  Constitution  have  broken  down 
the  economic  barriers  that  once  existed.  Communi- 
ties that  wer*  originally  absolutely  distinct  in  their 
economic  and  social  life  have  undergone  a  complete 
indu&trid  arnaljyaniation.  Each  administers  to  the 
wants  of  the  other,  and  each  in  turn  receives  a  benefit. 
The  wh«'atfields  of  the  Dakotas  and  the  factories  of 
Massachusetts  are  complementary  to  one  another. 
Where  industry  and  commerce  are  thus  fused  into  a 


FEDERAL  GOVEKNMENT  255 

■ingle  ecoBOBic   life,  it  u  impogsiUe  to  separate  the 
control  of  them  into  distinct  territorial  districts.     It 
becomes  an  absolute  necessity  that  the  powers  of  the 
federal  government  must  be  either  so  expressed  or  so 
interpreted  as  to  cover  the  whole  range  of  economic 
life  that  has  passed   the   bounds   of   the   component 
"states"  and  become  national.    It  is  for  this  reason 
that  the  process  of  addition  to  federal  power  may  be 
expected  to  continue  m  the  future.    Before  the  intrud- 
ing forces  of  industrial  civilization  "  state  lines  "  are 
becoming  more  and  more  meaningless.    Moreover,  the 
true  path  to  be  foUoweil  has  been  already  indicated  by 
the  German  and  Australian  constitutions.    By  adopting 
the  plan  of  concurrent  juristliction  and  leaving  it  to  the 
central  government  to  occupy  the  field  in  proportion 
as  the  progress  of  national  evolution  demands  it,  a  way 
is  open  for  continued  expansion  without  suffering  the 
pangs  of  amendment,  or  relying  upon  the  strained  in- 
terpretation of  the  law. 

We  have  still  left  out  of  consideration  the  question 
of  how  the  American  Constitution,  made  at  a  time  when 
local  jealousies  prescribed  the  most  grudging  admission 
of  federal  jwwer,  is  able  to  adapt  itself  to  the  changed 
situation  of  to-day.  That  this  is  not  done  by  legal  amend- 
ment  has  been  already  shown :  the  amending  machinery 
of  the  Constitution  is  so  rigid  and  immovable  that  it  is 
valueless  for  the  kind  of  adaptation  liere  demanded. 
But  instead  of  technical  amendment  a  process  of  virtual 
amendment  has  been  effect»*il  continuously  thiongli  the 
nineteenth  century  by  the  interpretation  given  to  the 
Constitution  by  tl»^  courts.  The  Constitution  is  fortu- 
nately an  elmtic  document,  capable  of  meaning  much  or 


III 


L^ 


266     THE  STRUCTURE  OF  THE  GOVERNMENT 

little  at  the  will  of  its  interpreter.    The  courts  therefore 
have  fallen  back  on  the  doctrine  of  "  implied  powers, " 
and  have  stretched  the  Constitution  to  cover  things 
never  contemplated  in  its  literal  meaning.    "  A  power 
vested,"  said  Chief-Justice  Marshall,  "  carries  with  it 
all  those  incidental  powers  which  are  necessary  to  its 
complete  and   efficient  execution."    The  purchase  of 
Louisiana,  the  Embargo  Act  of  1807,  grants  of  land  for 
railroads  and  canals,  the  annexation  of  Texas,  grants 
of  land  for  agricultural  colleges,  etc.,  are  not  things 
for  which  direct  authority  can  be  found  in  the  enu- 
merated powers  of  the  federal  government.'    It  is  by 
interpretation  only  that  Congress  has  the  power  to 
issue  paper  money,  to  make  anything  it  wills  legal  ten- 
der, to  charter  and  regulate  national  banks,  to  claim  a 
monopoly  of  the  postal  service.     It  is  probable  that,  if 
future  needs  demand  it,  the  Constitution  can  be  held  to 
permit  the  national  government  to  build,  buy,  and  own 
railroads,   and  to  monopolize  the  telegraph   service. 
That  this  device  of  latitndinarian  interpretation  has 
filled  a  most  useful  historical   purpose  is  beyond  a 
doubt.     It  is  an  excellent  example  of  the  political 
genius  inhcniit  in  the  Anglo-Saxon  temperaraent,that 
the  difficulty  created  by  the  error  in  making  amendment 
so  rigid  should  be  surmounted  by  so  simple  and  natural 
a  remedy.     The  error  remains  an  error  nevertheless. 
The   Swiss  or  Australian  system,  whereby  recurring 
amendment  is  part  of  the  life  of  the  constitution,  is 
greatly  to  be  preferred. 

1  See  Andrews,  Manual  of  the  Constitution,  p.  135. 


FEDERAL  GOVERNMENT 


257 


READINGS  SUGGESTED 

Sidgwick,  H.,  Development  of  European  Polity  (1903),  Lectures 

LX  and  XXIX. 
The  Federalist,  Essays  X^',  XVI,  XVII. 
Fiske,  J.,  American  Political  Ideas  (llKhi),  Lecture  II. 

FURTHEU  AUTHORITIES 
Story,  J.,  Commentaries  on  the  Constitution  of  the  United  SUtes 
(5th  edition,  1891). 

Curtis,  G.  T.,  Constitutional  History  of  the  United  States,  vol.  i 
(1896). 

Vincent,  J.  M.,  Government  in  Switzerland  (1900). 

Moore,  H.,  The  Commonwealth  of  Australia  (1902). 

Bourinot,  Sir  John,  Manual  of  the  Constitutional  Ilistorr  of 
Canada  (1888). 

Freeman,  E.  A.,  History  of  Federal  Government  (1863). 

Dareste,  F.  11.,  Les  Constitutions  Modernes  (1891). 

Laband,  Staatsrecht  des  Deutschen  Reiches  (4th  edition,  1901). 

Constitution  of  the  Confederate  SUtcs  of  America  (see  Curtis, 
Constitutional  History,  vol.  ii,  appendix). 

Stephens,  A.  H.,  A  Constitutional  View  of  the  AVar  between  the 
States  (1867-70). 

Merriam,  C.  E.,  History  of  the  Theory  of  Sovereignty  since  Rous- 
seau (1900). 

Doyle,  J.  A.,  English  in  America  (1887). 

Andrews,  E.  W.,  Manual  of  the  Constitution  of  the  United  Statei 
(1887). 


.|! 


/ 


yr 


"^    u^ 


U^  .itj^-icu^ 


•  • 


.  (      CHAPTER  VI 

COLONIAL  GOVERNMENT 


1.  The  Acquisition  of  Dependencies.  —  2.  Colonies  of  the  Ancient 
World.  —  :J.  Colonial  Expansion  after  the  Discovery  of  the  Sea 
Boute  to  the  East  Indies  nn<l  the  Discovery  of  America;  Spanish 
Colonial  System.  — 4.  Colonial  Policy  of  England  and  France  in  the 
Seventeenth  and  Eighteenth  Centuries.  —  5.  The  American  Revolu- 
tion.—0.  Alteration  ot  British  Colonial  Policy  in  the  Nineteenth 
Century;  Establishment  of  Self-Government.  —  7.  Present  Uritish 
System  of  Colonial  Administration.  —  8.  Imperial  Federation. — 
0.  Recent  Colonial  Expansion  of  European  States.  — 10.  The  De- 
pendencies of  the  United  States. 

1.  The  Acquisition  of  Dependencies.    Taking 
the  word  colony  in  its  widest  sense  to  include  all  kinds 
of  dependencies,  we  are  met  by  the  fact  that  the  colo- 
nies of  the  world  occupy  two  fifths  of  the  land  surface 
of  the  globe,  and  contain  a  population  of  half  a  bil- 
lion people.    Great  Britain  has  at  least  374,000,000 
colonial  subjects,  France  41,653,000,  the  Netherlands 
38,000,000,  Belgium  15,000,000,  and  Germany  about 
13,946,000.*    The  political  status  of  the  communities 
thud  controlled  presents  the  greatest  diversity.   In  the 
C  strict  theory  of  law  each  of  them  is  under  the  abso- 
r    lute  dominion  of  the  sovereign  state  to  which  it  "  be- 
l    longs."     In  practice  they  vary,  from  the  virtual  inde- 
pendence enjoyed  by  Canada  and  Australia  to  the  total 
dependence  of  Gibraltar  or   Madagascar.    The  vast 

1  Statistics  from  the  Statesman's  Year  Book  of  1912. 


COLONIAL  (lOVERNMENT 


250 


extent  and  the  great  natural  resources  of  the  modem 
colonial  area  indicate  its  importance  in  the  future  his- 
tory of  the  world.  The  realization  of  this  by  the  great 
powers  has  led,  during  the  past  twenty-five  years,  to  a 
renewed  colonial  expansion,  in  which  practically  all 
the  "  unclaimed  "  territory  of  the  world  has  been  par- 
titioned among  the  leading  states.  The  subject  of  colo- 
nial administration,  both  political  and  economic,  has 
taken  on,  in  consequence,  an  increased  interest,  and 
attention  is  more  and  more  directed  to  the  study  of  the 
systematic  management  of  dependencies.  The  recent 
expansion  of  the  Uniitid  States  resulting  from  the  war 
with  Spain  has  rendered  this  portion  of  the  study  of 
government  one  of  especial  consequence  to  Americans. 
The  present  chapter,  therefore,  will  be  directed  towards 
an  inquiry  into  the  origin  and  evolution  of  colonial  gov- 
ernment, the  different  systems  of  administration  now 
employed,  and  the  question  of  the  political  future  of  col- 
onies. Throughout  the  chapter  it  will  be  proper  to  de- 
vote most  attention  to  the  colonies  of  the  United  King- 
dom. Great  Britain  has  been,  par  excellence,  and  still 
is,  the  colonizing  country ;  and  it  is  by  the  British  gov- 
ernment, in  a  somewhat  groping  and  half-conscious  way, 
that  what  may  be  called  the  modern  system  of  colonial 
administration  has  been  worked  out.  The  new  depen- 
dencies of  the  United  States  will  be  examined  in  con- 
clusion in  order  that  their  present  government  may  be 
discussed  in  the  light  of  British  experience  in  the  past. 
A  8overei<]jn  state  comes  to  possess  dependencies  in 
various  ways.  The  simplest  is  that  of  cnngnnst.  by 
which  the  vanquished  community  is  subjected  to  the 
rule  of  its  victors.    Such  was  the  case  with  the  ex* 


ii 


200     THE  STRUCTURE  OF  THE  GOVERNMENT 

pansion  of  Rome,  whose  ''provincefl"  were  countrieii 
conquered  by  the  Rutnan  arms.  The  Spanish  colonies 
of  Mexico  Mi4  Peru,  nnd  the  British  dominions  in 
India,  were  the  fruits  uf  conquest.  Closely  akin  to  this 
is  the  acquisition  of  a  culony  byc^mjoa.  A  country 
possessing  a  colony  may  be  compelled  by  defeat  in  war 
to  cede  the  colony  as  the  price  of  peace,  or  induced 
from  commercial  reasons  to  sell  it.  The  nmaerous 
treaties  of  the  eighteenth  century,  whereby  France  and 
England  handed  their  colonial  possessions  back  and 
forward,  were  of  this  sort.  The  cession  of  Canada  by 
France  (1763),  and  of  the  Philippines  by  Spain  (1898  >, 
are  instances  of  colonial  acquisition  by  war,  while  the 
purchase  of  Louisiana  (1803)  illustrates  the  purely 
financial  process  of  acquisition.  Ili  addition  to  these 
two  modes  of  colonial  aggrandizement  there  remains 
what  may  Im  called,  j>ar  excellence,  the  ox\\ny\\-^\n^ 
process,  namely,  that  of  occupation  and  H(;ttlement.  In 
this  case  the  claim  to  the  colony  rests,  if  not  on  actual 
discos  ery  of  the  land  (Newfoundland,  Australia,  etc.), 
at  any  rate  on  priority  of  actual  occupation.  Where 
a  native  population  is  found  in  fixed  agricultural  settle- 
ments, the  assumption  of  control  approximates  to  con- 
quest. But  where  the  native  population  is  sparse  and 
migratory,  merely  wandering  over  the  land  in  nomadic 
fashion,  living  on  the  bounty  of  nature  and  the  fruits 
of  the  chase,  their  presence  ought  not  to  invalidate  the 
claim  of  immigrants  proposing  to  make  a  permanent 
and  fixed  settlement.  Mu<jh  sentiment  has  been  wasted 
over  the  supposed  claim  of  the  Indians  to  the  continent 
of  North  America.  When  it  is  recalled  that  the  whole 
Indian  population,  from  Newfoundland  to  Florida,  and 


COLONIAL  GOVERNMENT  Ml 

from  the  MiasiMippi  to  the  sea,  was  about  as  numer- 
ous as  the  iiihabitunts  of  a  large  Auierican  city  (prob- 
ably ahout  200,000),  and  that  its  settlements  were 
only  in  a  few  places  fixed  and  agricultural,  its  "  claim  " 
to  ownership  of  the  wliole  country  becomes  somewhat 
absurd.  One  may  well  ask  how  far  such  rea.soning  should 
be  carried.   Did  the  few  starveling  bushmen  of  the  des- 
ert and  forest  of  Australia  own  the  whole  continent? 
Without  accepting  the  brutal  code  of  the  right  of  the 
strongest,  one  may  in  all  reasonableness  recognize  the 
right  of  civilized  nations  to  the  acquisition  of  territory 
which  is  only  "squatted  upon"  by  wandering  savages. 
2.  Coloni'^  of  the  Ancient  VTorld.    Of  the  colo- 
nies of  the  ancient  world  those  of  Greece  and  PhoB- 
nicia  along  the  shores  of  the  Mediterranean  are  the 
most  noteworthy.   The  Phoenician  settlements  were  for 
the  most  part  merely  trading  stations,  but  there  were 
exce])tions  also  (such  as  Carthage)  in  which  a  large 
body  uf  emigrants  establisluul  a  permanent  agricultural 
settlement.   The  colonies  of  Greece  were  on  a  larger 
scale  :  they  resulted  first  of  all  from  the  Dorian  inva- 
sion of  the  Peloponnesus  about  1000  B.  c,  which  drove 
many  fugitives  to  seek  new  homes.   Similarly  the  con- 
quests of  the  Sjwi!  tans  and  the  inroads  of  the  Persians 
occasioned  a  scattering  of  some  of  the  conquered  tribes. 
Other  colonies  were  due  to  the    political  dissensions 
with  which  the  restless  city  states  of  Greece  were  rife 
and  which  sometimes  resulted  in  the  deliberate  with- 
drawal of  a  part  of  the  citizons  to  found  a  new  city 
elsewhere.    But  the  establishment  of  Greek  and  Phoe- 
nician colonies  did  not  involve  what  we  now  think  of 
as  colonial  government.   Athens,  indeed,  succeeded  iu 


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262     THE  STRUCTURE  OF  THE  GOVERNMENT 

exacting  money  tribute  from  the  cities  she  had  planted 
in  the  iBgean  Sea,  basing  her  claim  on  the  naval  pro- 
tection afforded  them.  But  the  c^eneral  practice  was  to 
regard  a  colony  as  an  independent  political  unit  irom, 
its  Inception.  Tt  was  an  emigration,  an  ''  outswarming  " 
of  freemen  who  carried  with  them  the  sam3  right  of 
self-government  that  they  had  had  in  t'ueir  former  home. 
A  somewhat  different  type  of  colony  made  by  settle- 
ment in  ancient  times  is  seen  in  the  Komau  colonia. 
This  was  a  settlement  of  Roman  soldiers  on  land  allotted 
to  them  by  their  general  after  it  had  been  conquered  ; 
here  the  prime  object  was  to  create  a  frontier  defense 
of  the  empire,  but  these  colonies  often  developed  into 
permanent  settlements. 

3.  Colonial  Expansion  after  the  Discovery  of 
the  Sea  Route  to  the  East  Indies  and  the  Discov- 
ery of  America ;  Spanish  Colonial  System.  It  is 
with  the  discovery  of  the  sea  route  to  the  East  Indies 
and  of  America  that  modern  colonization  begins.  The 
sixteenth  century  opened  to  the  adventurous  spirits  of 
Europe  a  wonderland  of  unknown  countries,  in  which 
to  satisfy  their  passion  for  exploration  and  adventure, 
their  lust  for  gold,  their  chivalrous  ambition  to  increase 
the  dominions  of  their  king,  and  their  pious  desire  to 
spread  the  Christian  religion  to  the  uttermost  parts  of 
the  earth.  It  was  in  this  age  of  adventure  and  conquest 
that  Spanish  and  Portuguese  colonial  aggrandizement 
acquired  the  peculiar  characteristics  of  domination  and 
levying  of  tribute  which  proved  its  ruin.  The  Portu- 
guese, sailing  around  the  Cape  of  Good  Hope,  secured 
a  monopoly  of  the  rich  trade  of  the  East.  Thither  their 
merchants  flocked  in  great  numbers,  setting  up  trading 


COLONIAL  GOVERNMENT 

stations  on  the  coast  of  Africa  (Sofala,  Zanzibar),  on 
the  shores  of  the  Indian  Ocean  (Goa,  Malacca,  etc.), 
among  the  East  India  Islands,  and  even  in  China  and 
Japan  (1542).  In  Brazil,  partly  by  sending  over  exiled 
Jews  and  transported  criminals,  they  founded  a  planta- 
tion colony  in  which  the  sugar  cane  was  cultivated  and  to 
which  slaves  were  early  introduced  from  the  coast  of 
Guinea.  Feudal  grants  of  land  were  made  to  nobles  of 
Portugal  with  almost  absolute  power  over  the  natives. 
The  Spaniards,  equally  adventurous,  directed  them- 
selves not  to  the  East,  but  to  the  AVest  Indies,  and  to 
the  mainland  of  Central  and  Southern  America.  A  bull 
of  Pope  Alexander  VI  (1493)  had  divided  the  unchris- 
tian world  with  magnificent  generosity  between  Spain 
and  Portugal ;  Spain  was  to  have  the  western  world, 
Portugal  the  east.  A  revision  of  the  shares  by  treaty 
gave  Brazil  and  Labrador  to  Portugal  and  all  the  rest 
of  America  to  Spain.  The  Spaniards  proceeded  to 
make  good  this  shadowy  claim  by  vigorous  conquest. 
By  the  year  1510,  Cuba,  Hispaniola,  Porto  Kico, 
Jamaica,  and  other  islands  had  fallen  an  easy  prey. 
Mexico  was  conquered  by  Cortes  (1519-21),  and  Peru 
fell  before  the  brutal  conqueror  Francis  Pizarro  (1525- 
35).  Thence  Spanish  dominion  spread  over  the  whole 
of  Central  and  South  America,  except  Brazil. 

From  the  very  beginning,  however,  the  colonial  sys- 
tem of  Spain'  had  taken  a  false  bias.  The  colonial  es- 
tablishments were  regarded  solely  as  a  source  of  profit 
to  the  conquerors.  There  was  no  question  of  real  self- 
government  or  liberty  of  trade.    A  recent  writer  ^  has 

^  See  Zimmermann,  Die  Europaischen  Kolonien,  vol.  i  (1896). 
'  Professor  Blackmar,  U.  S.  Bureau  of  Statistics  Publication,  Culo- 
nial  Administration  (19U1). 


il 


I, 


264     THE  STRUCTURE  OF  THE  GOVERNMENT 

thus  described  the  Spanish  system  of  administration  in 
the  centuries  which  followed  :  "  All  the  laws,  the  con- 
trol of  trade,  commerce,  agriculture,  finance,  taxation, 
the  foundation  of  municipalities,  the  management  of  the 
natives,  and  the  regulation  of  religion  were  made  in  the 
mother  country,  and  sent  to  the  colonies  with  the  expec- 
tation that  the  colonies  would  adapt  themselves  to  the 
laws.  Nor  did  the  decrees  of  the  crown  and  its  agencies 
stop  here,  but  the  home  bureau  organized  the  colonial 
government,  local  and  central.  The  officers  and  rulers 
were  natives  of  Spain  sent  out  to  rule  their  distant  de- 
pendencies. During  the  Spanish  domination  in  Amer- 
ica nearly  all  the  important  offices  of  the  state  and 
church  had  been  filled  by  Spaniards.  The  presidents 
and  judges  of  the  courts  were  from  Spain.  There  were 
"■  ^'  Americans  out  of  672  viceroys,  captains-general,  and 
governors ;  and  105  native  bishops  out  of  706  who  ruled 
in  the  colonies.  This  system  of  officialism  continued  in 
all  of  the  colonial  possessions  of  Spain  to  the  close  of 
the  present  [the  nineteenth]  century."  In  matters  of 
trade  and  industry  the  Spanish  colonies  were  under  the 
most  stringent  regulation.  They  could  trade  with  no 
other  country  but  Spain  itself,  and  even  then  only 
through  the  organization  known  as  the  Casa  de  Contra- 
tacion,  which  held  a  monopoly.  That  such  a  system 
contained  in  itself  the  seeds  of  its  own  ruin  is  only  too 
evident.  The  revolt  of  the  Spanish  colonies  and  the 
establishment  of  their  indepe?  3e  in  the  early  part 
of  the  nineteenth  century  were  che  natural  outcome  of 
such  a  vicious  and  short-sighted  colonial  policy. 

4.   Colonial  Policy  of  England  and  France  in 
the  Seventeenth  and  Eighteenth  Centuries.    Al- 


COLONIAL  GOVERNMENT 


266 


though  England  and  France  were  early  in  the  field 
with   voyages   of   exploration    (Cabot,  1497,  Cartier, 
1534)  the  establishment  of  their  American  colonies 
belongs  to  the  seventeenth  century.  With  Champlain's 
permanent  settlement  on  the  St.  Lawrence  (1608),  and 
the  landing  of  the  Pilgrim  Fathers  (1620)  the  begin- 
nings  were  laid  of  New  France  and  New  England. 
From  the  grant  of  the  charter  to  the  Virginia  Com- 
pany, 1606,  dates  the  commencement  of  the  plantation 
colonies  of   the   South.     That   the   English   colonies 
grew  and  flourished  on  the  Atlantic  is  to  be  attributed 
to  the  good  fortune  of  the  English  government,  rather 
than  to  its  political  foresight.    The  sterling  qualities 
of  the   colonists  themselves,   animated   by   the  high 
purpose   of   religious   refugees,  or   by  the   daring  of 
adventurers,  had  much  to  do  with  their  success.    It 
was  through  the  neglect,  and  not  by  the  policy,  of  the 
home  government,  that   the  colonists  acquired   their 
political  right  of  self-government.  The  charter  granted 
to   the    Massachusetts    Bay    Company   in  1629   was 
intended  by  the  government  as  a  sort  of  commercial 
instrument  for  the  conduct  and  governance  of  a  trad- 
ing company.     It  was  the  emigration  of  the  officers 
and  the  company  itself  to  the  sliores  of  America  which 
converted  it  into  a  political  constitution.    In  the  seven- 
teenth century  the  English  in  general  did  not  dream 
of  the  magnitude  of  the  colonial  empire  which   lay 
within  their  reach.    In  this  their  colonial  policy  was 
sharply  contrasted  with  tliat  of  France.    The  French 
government  early  recognized  the  possibilities  of  Ameri- 
can colonization ;  they  realized  the  value  of  the  St.  Law- 
rence and  the  Mississippi  as  opening  the  way  to  the 


SI 

it 


I. 
I]' 


p 
i; 


266     THE  STRUCTURE  OF  THE  GOVERNMENT 

interior  of  the  continent,  and  planned  a  vast  colonial 
empire  which  should  encircle  the  narrow  English 
settlement  of  the  Atlantic  seaboard.  The  English 
government  in  the  seventeenth  century  gave  little  or 
no  help  to  its  dependencies;  the  French  were  ready 
from  the  first  with  money  and  ships  to  be  used  in  the 
upbuilding  of  New  France.  It  has  been  part  of  the 
irony  of  history  that  the  magnificent  empire  thus 
planned  by  the  French  should  have  passed  by  the 
fortune  of  war  into  the  hands  of  the  British  crown. 

But  before  the  close  of  the  seventeenth  century,  the 
American  colonies,  from  their  growth  in  population  and 
the  development  of  their  resources,  began  to  assume  a 
new  importance.  The  colonial  trade  offered  a  harvest  to 
the  merchants  of  the  mother  country,  and  supplied  a  new 
bone  of  contention  to  vex  the  long-standing  quarrels  of 
England  and  Trance.  Indifferent  as  the  British  gov- 
ernment had  been  to  the  political  position  of  its  earlier 
colonists,  it  adopted  in  reference  to  the  growing  trade 
of  the  colonies  a  policy  much  resembling  that  of  Spain. 
So  too  did  the  French,  whose  colonial  schemes  included, 
of  course,  the  profit  to  be  derived  by  the  mother  coun- 
try from  the  natural  wealth  of  its  possessions.  Already 
in  the  reign  of  Charles  II  the  navigation  acts  *  had 
placed  restrictions  on  colonial  commerce.  By  the  first 
of  these  (1660)  foreign  ships  were  forbidden  to  trade 
with  the  colonies.  All  colonial  sugar,  tobacco,  cotton, 
indigo,  and  other  enumerated  articles  were  to  be  sent 
only  to  England,  or  to  an  English  possession;  nor  could 

1  Fop  the  contenta  of  the  na\-igation  slCb  and  a  criticism  of  British 
colonial  policy  involved,  the  student  may  consult  Egerton,  Short  Hit' 
tory  of  British  Colonial  Policy,  a  really  .admirable  work. 


COLONIAL  GOVERNMENT 


267 


foreigners  become  merchants  in  an   English  colony. 
A  new  act  of  1663  kept  out  all  ships  that  had  been 
built  in  foreign  countries.      An  act  of  1664  obliged 
European  goods,  even  if  placed  in  English  ships,  to  be 
first  landed  in  England  before  being  exported  to  the 
colonies.    Finally,  an  act  of  1672  made  goods  passing 
from  colony  to  colony  liable  to  whatever  customs  du- 
ties they  would  have  incurred  if  brought  into  England. 
These  are  the  famous  navigation  acts  which  formed  the 
basis  of  the  English  colonial  policy  of  the  eighteenth 
century.     It  was  necessary  indeed  to  modify  them  by 
making  concessions  to  the  colonists  where  they  became 
too  burdensome.     The  trade  in  wine  and  fish  between 
Portugal  and  New  England  was  made  an  exception. 
On  the  other  hand  the  acts  were  reenforced  by  a  num- 
ber of  statutes  in  the  early  part  of  the  eighteenth  cen- 
tury.   Such  a  commercial  code,  if  applied  to  a  modem 
colony,  would  appear  monstrous.     It  can  however  be 
said  in  defense  of  the  acts,  that  they  helped  to  encour- 
age the  growth  of  British  and  colonial  shipping,  and 
thus  contributed  to  the  national  defense  of  both  the 
mother  country  and  the  colonies.    Nor  did  the  restric- 
tions laid  upon  trade  press  as  severely  upon  the  colonies 
as  might  be  imagined.  Evasion  of  the  laws  was  notorious, 
and  in  any  case  tho  natural  direction  of  commerce  was  to 
the  British  Isles.  Less  defense  can  be  found  for  tlie  pol- 
icy of  Great  Br.'tain  in  legislating  in  the  eighteenth  cen- 
tury against  colonial  manufactures.    "  The  creating  of 
manufactures  in  the  colonies,"  ran  a  resolution  of  the 
Brtish  House  of  Commons  in  1719,  "  tends  to  lessen 
th  >'    dependence  on  Great  Britain."      In  accordance 
wi;  J  this  a  statute  of  that  year,  fortunately  applied  only 


268     THE  STRUCTURE  OF  THE  GOVERNMENT 

in  part,  forbade  all  forms  of  iron  manufacture  in  the 
American  colonies.  Indeed,  when  all  is  said,  the  whole 
cotle  of  commercial  and  industrial  regulation  must  be 
considered  as  the  outcome  of  the  inveterate  European 
habit  of  viewing  colonial  establishments  as  a  source 
of  mercantile  profit.  "The  deliberate  selfishness  of 
English  conunercial  legislation."  says  Mr.  Lecky,"was 
digging  a  chasm  between  the  mother  country  and  her 
colonies,  which  must  inevitably,  when  the  latter  had  be- 
come sufficiently  strong,  lead  to  separation."* 

5.  The  American  Revolution.  The  quarrel  be- 
tween  England  and  her  American  colonies  which  ended 
finally  in  independence  is  the  most  important  fact  in  the 
evolution  of  colonial  government.  It  showed  to  the  world 
the  elementary  fact  of  colonial  administration,  that  no 
civilized  colony  of  size  and  increasing  population  can 
be  kept  in  a  state  of  permanent  political  tutelage.  It 
led  England  to  adopt,  not  immediately  but  ultimately, 
the  policy  of  colonial  autonomy.  What  had  previously 
been  dono  through  neglect  was  new  sanctioned  by  the 
teaching  of  experience.  Yet,  as  in  ere'-y  quarrel,  there 
were  certainly  two  sides  to  th  .  .   On  the  one 

side  was  the  righteous  protest  .      people  against 

political  dictation,  against  tha  ^cion  without  re- 

presentation," the  very  sound  of  which  is  repugnant  to 
Anglo-Saxon  ears  ;  on  the  other  side  were  pressing 
needs  of  imperial  defense.^  The  patriotism  of  national 
historians  has  long  obscured  the  one  or  the  other  of 

1  W.  E.  H.  Lecky,  History  of  England  in  the  Eighteenth  Century,  vol. 
iii.  chap.  zii. 

*  The  English  side  of  the  controversy  is  to  be  found  in  Lecky, 
History  of  England  in  the  Eighteenth  Century,  vol.  iii,  chap,  xii;  and 
Kcrerton,  Short  History  of  British  Colonial  Policy,  bk.ii  (passim). 


COLONIAL  GOVERNMENT 


260 


the  two  sides  of  tho  controversy;  it  is  mly  after  a 
lapse  of  a  century  and  a  half  that  a  clea:  er  vision  is 
becoming  possible.  That  the  American  lesistanee  to 
imperial  taxation  in  the  form  in  which  it  came  to  them 
was  justified  seems  beyond  a  doubt.  But  the  colonies 
were  equally  wrong  in  a«lopting  towards  the  vexed 
question  of  imperial  finance  the  selfish  inertia  of  in- 
difference. Unkindly  critics  have  not  scrupled  to  say 
that  it  was  not  "  taxation  without  rejjresentation  "  that 
they  resented,  but  taxation  in  any  form  and  by  any 
authority.  The  strain  on  the  imperial  treasury  of  pro- 
tecting British  subjects,  both  home  and  colonial,  against 
foreign  powers  had  been  great.  The  successive  wars 
against  France  —  King  William's  war  (1089-97),  Queen 
Anne's  war  (1702-13),  King  George's  war  (1744-48), 
and  the  French  war  (1756-63),  to  give  tiiem  the 
names  by  which  tliey  were  known  to  the  colonists  — 
had  increased  the  national  debt  at  an  alarming  rate. 
Amounting  in  1702  to  a  little  over  twelve  and  a  half 
millions  pounds,  it  stood  at  over  one  hundred  and  thirty- 
two  millions  at  the  Peace  of  Paris  (1763).  Much  of 
this  had  been  spent  in  defense  of  the  American  posses- 
sions. The  colonies  indeed  had  contributed,  in  separate 
fashion  and  in  unequal  proportion,  both  money  and  men 
to  aid  the  British  arms  in  America.  It  was  a  colonial 
expedition  that  captured  Louisburg  in  1745,  the  money 
thus  spent  being  partly  reimbursed  by  a  parliamentary 
grant  from  Great  Britain.  But  colonial  contributions 
for  defense  were  irregular  and  imequal.  The  colonies 
removed  from  the  scene  of  immediate  danger  were  in- 
clined to  shirk  responsibility  altogether.  During  King 
George's  war  the  New  York  Assembly  proved  quite 


ill  ' 


i>  1 


i 

"ii 


Tl? 


270     THE  STRUCTURE  OF  THE  GOVERNMENT 

intractable.   At  first  they  would  do  nothing  for  defense ; 
later  they  contributed  money  sparingly  for  the  Louis- 
burg  exjwdition,  but  would  send  no  men.    Now  .ItTsov 
was  an  inveterate  delinciuent.    Sheltered  by  the  tidjii- 
cent    colonies    from    the   actual    ravages    of    fr..ntier 
warfare,  slie  was  never  ready  to  make  adequate  contri- 
bution towards  tiie  common  defense.    In  Queen  Anne's 
war  the  Assembly  struggled  hard  to  prevent  the  raising 
of  a  military  force,  and  was  only  force.l  into  doing  so 
by  the  packing  of  the  house.   Contributions  were  made 
to  King  George's  war,  but  in  the  great  final  struggle 
of  tho  French  war  New  Jersey  remained  culpably  in- 
active.'    These  were  not  isolated  instances,  but  were 
characteristic  of  the  difficulty  of  obtaining  joint  action 
from  the  colonial  governments.    Mr.  Lecky  thus  de- 
scrib  >s  the  situation:  "In  order  to  raise  the  money  for 
the  support  of  the  American  army  it  was  necessary  to 
have  the  assent  of  no  less  than  seventeen  colonial  as- 
semblies.   Tho    hopeltssness   of  attempting  to  fulfill 
these  conditions  was  very  manifest.   If  in  the  agonies 
of  a  great  war  H,  had   been  found  impossible  to  in- 
duce the  colonies  .  .  act  together;  if  the  Sauthern  col- 
onies long  refused  to  assist  the  Northern  ones  i    *heir 
struggle  against  France  because  they  were  fa      /om 
the  danger ;  if  South  Carolina,  when  reluctantly  raising 
troops  for  the  war,  stipulated  that  they  should  act  only 
within  their  own  province ;  if  New  England  would  give 
little  or  no  assistance  while  the  Indians  were  carrying 
desolation  over  Virginia  and  Pennsylvania,  what  chance 
was  there  that  all  these  colonies  would  agree  in  tir.  j 

»  See  Lodge,  Short  History  of  the  Engluh  Cvlmies  in  America,  chap. 


COLONIAL  GOVERNMENT  m 

of  peace  to  propose  uniform  and  proportionate  taxation 
on  thwraselveB  in  support  of  an  English  army  ?  "  The 
financial  difficulty  to  be  f.'ccd  was  thus  an  actual  one, 
though  nygravated  by  the  uiiHtaken  p<)li»-y  of  the  Hiit- 
ish  crown.  The  colonies  and  the  mother  country  had 
reached  an  iwj)n.H»e  ;  further  continuance  on  the  exist- 
ing basis  was  no  longer  jjossible ;  the  only  solution 
could  have  been  found  in  a  joint  revision  of  inter- 
imi)erial  relations ;  this  the  dull  stupidity  of  the  Eng- 
lish  administration  and  the  willful  inertia  and  mutual 
jealousies  of  the  colonies  rendered  impossible.'  It  is 
of  iniiwrtance  properly  to  appreciate  the  historic  situ- 
ation thus  created ;  for  the  relative  financial  situation 
of  Britain  nnd  her  colonies  is  now  reproducing  itself 
on  the  horizon  of  the  twentieth  century.  To  this  at- 
tention will  be  directed  later. 

6.  Alteration  of  British  Colonial  Policy  in  the 
Nineteenth  Century;  Establishment  o.'  Self  Gov- 
ernment. In  what  has  been  said  above  it  is  not  meant 
to  imply  that  the  system  of  self-government  in  the  col- 
onies was  established  at  once  after  the  American  K«  vo- 
lution. Indeed,  for  the  time  being,  the  case  was  rather 
the  contrary.  The  king  and  his  ministers,  atributiii 
the  disaster  of  their  colonial  system  to  the  license  al- 
lowed to  the  colonial  assemblies,  were  inclined  to  tighten 
their  grip  UjW:  their  remaining  dependencies.  The 
Quebec  act  ot  1774  established  royal  government  in 
Can.ida  with  no  elective  .issembly,  but  only  a  eoun<'il 

'  The  rejection  of  the  scheme  of  the  Albany  congress  (n.">4),  re- 
jected by  both  mother  country  and  colonies;  the  recognition  by 
various  colonial  governors  of  insight,  of  the  need  of  union  and  joint 
taxation;  Governor  Pownall's  proposition  of  an  imperial  oustoma 
union  —  may  be  reckoned  among  the  signs  of  the  times. 


11! 


:'!• 

m 


272     THE  STRUCTURE  OP  THE  GOVERNMENT 

nominated  by  the  crown.   Even  under  Pitt's  constita> 
tional  act  of  1791  the  measure  of  liberty  granted  to 
the  Canadians,  and  intended  to  reward  the  allegiance 
of  the  Loyalists,  consisted  only  in  the  right  to  e)ect  the 
members  of  the  lower  nouse  in  each  of  two  provinces. 
The  governor,  the  executive  council,  and  the  legislative 
council  or  upper  house,  were  all  appointed  by  the  crown. 
The  same  is  true  of  the  other  North  American  colonies. 
Those  that  already  had   partial   self-government  (as 
Nova  Scotia,  Barbadoes,  Jamaica,  Bernmda)  were  not 
deprived  of  it,  but  those  newly  acquired  (Trinid  'd, 
etc.)  were  kept  under  crown  government.  Cape  Colou/, 
definitely  ceded  in  1816,  remained  under  military  gov- 
ernment til  1835.    Even  then  the  civil  government 
establ'sliCiU  was  a  nominated  and  not  an  elective  one. 
Self-government  being  out  of  the  question  in  a  penal 
settlement,  Australia  remained  long  in  direct  depend- 
ence on  the  crown.    Lut  the  lesson  taught   by  the 
American  Revolution  had  nevertheless  been  effective. 
As  the  new  colonies  grsw  in  population  and  importance, 
the  opinion  gained  strength  that  both  justice  and  ex- 
pediency demanded  that  tlrey  should  administer  their 
own  affairs.    Even   on  commercial  principles  it  was 
thought  that  colonial  liberty  was  more  profitable  than 
colonial  bondage.   The  doctrines  of  the  political  econo- 
mists which  became  in  the  middle  of  the  century  the 
official  creed  of  the  English  government,  brought  about 
the  establishment  of  free  trade  (1846)  and  the  repeal 
of  what  was  left  of  the  navigation  acts  (1849).  Already 
before  this  the  serious  rebellion  in  Canada  (1837)  and 
Lord   Durham's   report,   strongly   recommending  the 
establishment  of  responsible  government,  had  called 


COLONIAL  GOVERNMENT 


273 


il 


public  attention  to  dangers  of  the  existing  sys- 
tem. Tbo  Act  of  Union  of  1840,  joining  Uitpur  and 
Lower  Canada  into  one,  introduced  the  ]».  uuipl^  ,■' 
parliamentary  self-government.  Before  the  en.,  of 
the  next  decade  the  same  "enfranuhimimcnt''  wui 
exttnded  to  the  other  provinces  of  BritiHh  North 
America  (Nova  S(!otia  and  New  Brunswick,  1848, 
Prince  Edwarrl  Island,  l*"'!,  and  Newfoundland, 
1855),  and  to  all  the  oV  •  olonies  in  a  position  to 
receive  it.* 

It  is  interesting  and  instructive  to  observe  the  atti- 
tude  adopted  in  England  towards  the  colonies  at  the 
time  of  the  grant  of  self-govurnment,  and  in  the  period 
immediately  following.  In  the  first  place  two  great 
questions  of  paramount  interest  in  the  colonial  pcjlicy 
of  the  present  day  were  left  entirely  out  of  sight,  — 
the  tariff  relations  of  the  colonies  with  the  mother 
country,  and  the  question  of  imperial  defense.  That 
the  tariff  should  have  passed  unconsidered  was  entirely 
to  be  ex-^ected  in  'he  light  of  the  ideas  then  prevalent; 
indeed  question  seemed  to  have  settled  itself  in  the 
course  o  .  ature,  and  the  optimistic  free-traders  of  the 
middle  of  the  century  took  it  for  granted  that  tariff 
'  •  iriers  were  soon  destined  to  disappear  the  world 
over.  It  seemed  unnecessary,  tlierefore,  to  stipulate 
for  free  trade  or  any  form  of  customs  union  between 
the  United  Kingdom  and  its  dependencies.   Tlie  other 


it^ 


*  New  Zealand  recefred  responsibLe  government  by  an  Act  of  1852, 
M  interpreted  in  I860;  New  South  W»leg  and  Victoria,  1855;  Sooth 
Anstralia  and  Tasmania,  1866;  Queensland,  1859;  Cape  Colony,  1872; 
Weetem  Anatralia,  1890. 


274     THE  STRUCTURE  OF  THE  GOVERNMENT 


problem,  that  of  imperial  defense,  was  also  passed  over : 
perhaps  by  virtue  of  the  very  difficulty  of  its  solution, 
perhaps  as  a  result  of  the  sanguine  hopes  that  had  been 
fostered  in  the  peace  era.  The  policy  adopted  was  not 
everywhere  approved.  Disraeli,  speaking  in  1872,  and 
foreseeing  with  characteristic  prescience  the  difficul- 
ties that  must  arise,  pronounced  it  a  mistake.  "  Self- 
government,"  he  said,  *' ought  to  have  been  conceded 
as  part  of  a  great  policy  of  imperial  consolidation.  It 
ought  to  have  been  accompanied  by  an  imperial  tariff 
.  .  .  and  by  a  military  code  which  should  have  pre- 
cisely defined  the  means  and  the  responsibilities  by 
which  the  colonies  should  be  defended,  and  by  which, 
if  necessary,  this  country  should  call  for  aid  from  the 
colonies  themselves." 

But  the  real  secret  of  the  willingness  of  the  English 
people  to  leave  the  government  of  the  colonies  in  the 
hands  of  the  colonists  themselves  lay  in  the  new  view 
that  was  becoming  current  as  to  the  "manifest  destiny" 
of  the  British  colonies.*  The  example  of  the  rise  and 
progress  of  the  United  States  seemed  to  point  towards 
the  inevitable  future  of  all  great  dependencies  inhabited 
by  an  enlightened  and  increasing  population.  Independ- 
ence seemed  only  a  question  of  time,  and  the  duty  of 
the  mother  country  was  to  give  the  colonies  a  sound 
political  education  in  the  methods  of  responsible  gov- 
ernment, and  when  the  destined  hour  came  to  let  them 
depart  in  peace.  The  views  of  the  "little  Englanders," 
of  the  Manchester  school  of  economists,  averse  to  large 
military  and  naval  expenditures,  cosmopolitan  in  their 

For  interesting  details  in  this  connection  see  B.  Holland,  Imperium 
tt  Libertas  (1901). 


■ai 


COLONIAL  GOVERNMENT 


275 


sympathies  and  sanguine  in  their  hopes  of  the  commer- 
cial unity  of  the  world,  powerfully  stimulated  public 
feeling  in  this  direction.  It  is  astonishing  at  the  present 
date  to  look  back  on  the  opinion  then  prevalent.  Sir 
F.  Rogers  (afterwards  Lord  Blachford),  who  for  eleven 
years  was  permanent  uuder-secretary  for  tlie  colonies 
(1800-71),  wrote  at  a  later  date  (1885)  of  the  views 
beheld  in  the  foUowing terms :  "I  had  always  believed, 
—  and  the  belief  has  so  far  confirmed  and  consolidated 
itself,  that  I  can  hardly  realize  the  possibility  of  any 
one  seriously  thinking  the  contrary  —  that  the  destiny 
of  our  colonies  is  independence :  and  tliat  in  this  point 
of  view  the  function  of  the  Colonial  Office  is  to  secure 
that  our  connection,  while  it  lasts,  shall  be  as  profitable 
to  both  parties,  and  our  separation,  when  it  comes,  as 
amicable  as  possible."  Such  views  were  only  too  com- 
mon in  the  period  of  colonial  history  from  1840  to  1880. 
Payne, in  his  "History  of  European  Colonies"  (1877), 
designed  as  an  educational  work  for  English  schools, 
wrote :  "  Canada  and  Victoria  are  bound  to  England 
by  a  tie  so  slight  that  its  rupture  would  not  at  all  be 
dreaded;  and  such  a  rupture  would  hardly  be  felt 
whenever  it  happened."  Great  indeed  is  the  contrast 
between  such  a  point  of  view  and  the  sentiments  now 
entertained  both  in  Great  Britain  and  the  colonies,  of 
the  relations  of  the  dependencies  to  the  mother  country. 
But  before  considering  the  new  imperialism  and  its  polit- 
ical consequences,  it  will  be  best  to  pass  briefly  in  review 
the  varied  systems  of  government  at  present  obtaining 
in  the  colonial  possessions  of  the  United  Kingdom. 

7.  Present  British  Sjrstem  of  Colonial  Admin- 
istration.  First  let  us  consider  the  general  principles 


Wi 


276     THE  STRUCTURE  OP  THE  GOVERNMENT' 

which  are  adopted  in  the  management  of  the  British 
colonial  possessions.  Some  persons  indeed  might  deny 
that  there  are  any  general  principles  involved  ;  for  it  is 
contrary  to  the  spirit  of  British  institutions  to  act  on  a 
formal  and  preconceived  plan,  and  the  method  adopted 
is  rather  a  habitual  way  of  doing  things,  based  on  the 
teaching  of  experience,  than  a  scientific  and  complete 
system  of  administration.  The  British  system,  if  the 
word  may  be  allowed,  recognizes  no  absolute  right  of 
self-government.  It  aims,  in  the  words  of  Earl  Grey, 
to  allow  "  the  inhabitants  to  govern  themselves  when 
sufficiently  civilized  to  do  so  with  ad  vantage "  and, 
tdiere  this  is  not  the  case,  to  provide  "  a  just  and  im- 
partial administration  of  those  colonies  of  which  the 
population  is  too  ignorant  and  unenlightened  to  manage 
its  own  affairs."  It  is  recognized  therefore  tliat  the 
government  adopted  in  each  colony  must  be  in  accord 
with  the  particular  conditions  presented,  must  vary 
according  to  the  race,  character,  and  number  of  the 
population,  their  degree  of  enlightenment,  the  extent 
of  the  territory,  and  (as  in  the  case  of  Gibraltar)  with 
the  possible  military  importance  of  the  place  for  the 
defense  of  the  empire.  Within  these  limits  the  princi- 
ple obtains  that  a  colonial  community  of  which  the  great 
majority  is  made  of  civilized  whites  shall  be  granted 
the  fullest  autonomy;  while  to  the  other  colonies  shall 
be  extended  such  a  measure  of  self-government  as 
their  circumstances  seem  rightly  to  demand.  The  prin« 
ciple  of  political  training  for  future  self-government, 
as  is  seen  in  the  case  of  the  elected  municipal  bodies  in 
India,  is  also  recognized.  In  the  case  of  every  colony, 
however,  the  crown  retains  a  certain  power  of  control ; 


sa 


COLONIAL  GOVERNMENT 


il' 


277 


the  governor,  or  executive  head  of  the  colony,  some- 
times nominal,  sometimes  actual,  is  the  non.inee  of  the 
crown  ;  the  crown  reserves  a  veto  on  all  colonial  legis- 
lation ;  the  final  court  of  appeal  for  colonial  cases  is  the 
judicial  committee  of  the  Privy  Councsil. 

Though  resting  on  this  general  plan,  the  governments 
of  the  British  colonies  present  the  greatest  range  of 
diversity  in  the  details  of  their  political  constitution. 
Various  classifications  have  been  offered,  of  which  the 
most  satisfactory  seems  to  be  the  separation  first  of 
all  into  three  great  classes,  —  the  crown  colonies, 
the  representt^t^vfi  <!olonies^  the  respotiSibljlt  COlpnies. 
The  crown  colonies  are  those  which  have  no  self- 
government;  the  representative  colonies  are  those 
which  have  partial  self-government;  the  responsible 
colonies  are  those  which  have  complete  self-govern- 
ment. These  three  divisions  may  be  taken  to  indicate, 
not  only  the  classification  of  the  dependencies  at  any 
particular  time,  but  also  the  stages  through  which  a 
British  colony  passes  in  the  upward  progress,  ^nada, 
as  has  been  seen,  was  a  crown  colony  from  its  conquest 
unbt  ii^l^  a  representative  colony  until  the  act  of 
"Ift^T  ""'ii  fli"^fi  tb"^  ft  responsible^colony. 

In  the  first  of  these  divisions,  the  crown  colonies 
(with  which  also  the  various  protectorates  are  to  be 
included),  are  comprised  all  those  dependencies  whose 
governing  officials  are  all  nominated  by  the  crown. 
The  list  includes  the  Straits  Settlements,  Hong  Kong, 
Fiji,  Trinidad,  Sierra  Leone,  Honduras,  Gibraltar,  St. 
Helena,  and  many  other  places.  Within  the  group, 
however,  various  degrees  of  dependence  on  the  home 
government  are  found.  In  the  places  of  great  military 


278     THE  STRUCTURE  OF  THE  GOVERNMENT 

and  naval  importance  (Gibraltar,  St.  Helena)  and  in 
dependencies  containing  but  few  white  people,  the  con- 
trol  of  the  crown  is  complete ;  the  nominated  officials 
are  appointed  directly  by  the  home  government,  and 
sent  out  to  the  colony.  In  Gibraltar  the  whole  legisla- 
tive and  executive  authority  is  vested  in  the  comman- 
der-in-chief, who  is  also  governor.  In  other  possessions, 
representing  a  higher  stage  of  colonial  evolution,  and 
which  contain  a  considerable  element  of  white,  or  at 
least  of  educated  native  inhabitants,  the  control  of  the 
crown  is  less  direct.  In  British  Honduras,  for  example, 
the  administration  is  conducted  by  a  governor  with  a 
nominated  executive  council  of  five  members,  and  a 
legislative  council  consisting  of  three  ex-officio  members 
and  five  others  nominated  by  the  crown  from  among 
the  residents.  The  government  of  Hong  Kong  ap- 
proaches still  more  nearly  to  being  representative. 
The  governor  has  as  his  executive  council  a  nomlxiated 
body  of  eight  members,  six  of  whom  (the  secretary, 
the  officer  commanding  the  troops,  the  treasurer,  the 
attorney-general,  the  harbor  master,  and  the  director  of 
public  works)  hold  their  positions  ex  officio.  There  is 
in  addition  a  legislative  council  composed  of  the  same 
ex-officio  members  together  with  the  captain-superin- 
tendent  of  police  and  six  unofficial  members,  —  four 
appointed  by  the  crown  (two  of  these  being  Chinese), 
one  nominated  by  the  Chamber  of  Commerce,  and  one 
by  the  local  justices  of  the  peace.  Such  a  body,  it  will 
be  observed,  stops  just  short  of  the  principle  of  pop- 
ular election.  The  details  here  given  are  not  of  im- 
portance in  themselves,  but  are  intended  to  show  the 
careful  grading  of  the  British  colonial  government. 


COLONIAL  GOVERNMENT  279 

The  representative  colonies  are  those  in  whose  gov- 
ernment the  principle  of  election  has  been  Introduced, 
without,  however,  being  allowed  to  predominate.  To 
this  class  belong  Ceylon,  Jamaica,  Mauritius,  the  Baha> 
mas,  Barbados,  British  Guiana,  Bermuda,  etc.  Here 
again  two  degrees  of  relative  dependence  may  be 
distinguished.  In  some  of  them  (as  Mauritius  and 
Jamaica)  the  legislature  consists  of  a  single  body,  a 
part  of  whose  members  are  nominated  and  the  rest 
elected;  in  others  (as  Barbados)  the  legislature  con. 
sists  of  two  houses,  one  entire  house  being  elected  by 
the  people.  But  in  all  the  representative  systems,  the 
officers  of  the  executive  are  nominated,  and  the  par- 
liamentary system  of  government  does  not  obtain.  The 
legislature  (Council  of  Government)  of  Mauritius,  made 
up  of  the  governor,  eight  ex-officio  members,  with  nine 
nominated  by  the  governor  and  ten  elected  members,  is 
typical  of  the  first  class.  Barbados  illustrates  the  second 
and  more  advanced  type;  it  has  a  bicameral  legisla- 
ture, the  upper  house  (Legislative  Council)  composed 
of  nine  members  nominated  by  the  crown,  and  the 
lower,  or  House  of  Assembly  (twenty-four  members), 
being  elected  annually  by  the  people. 

At  the  apex  of  the  system  stand  the  really  self-gov- 
erning, the  responsible  colonies,  whose  governments 
are  modeled  on  that  of  the  United  Kingdom  itself. 
These  include  Canada,  Newfoundland,  Australia  (now 
federated),  New  Zealand,  r  the  Union  of  South 
Africa.  The  last  mentioned  go  rnment  was  constituted 
under  the  South  Africa  Act  of  1909  and  includes  the 
provinces  of  the  Cape  of  Good  Hope,  Natal,  the  Trans- 
vaal, and  the  Orange  Free  State.  The  combination 


11 


;H 


280    THE  STRUCTURE  OF  THE  GOVERNMENT 


thus  formed  is  not  a  federation,  but  is  unitary  in  struc- 
ture. The  responsible  colonies  enjoy  a  virtual  inde- 
pendence. Th  ir  governments  have  been  created,  as 
already  seen  in  the  case  of  Canada  and  Australia,  by 
statutes  of  the  British  Parliament  which  are  practically 
equivalent  to  written  constitutions.  With  the  excej)- 
tion  of  the  nomination  of  the  governor-general  (or  gov- 
ernor, as  the  case  may  ud),  the  reservation  of  the  power 
of  disallowing  colonial  statutes,  and  the  retention  of 
the  judicial  committee  of  the  Privy  Council  as  the 
final  court  of  appeal,  the  home  government  withdraws 
from  any  internal  control  of  the  self-governing  colonies. 
It  must  however  be  distinctly  understood  that  in  point 
of  law  this  8elf-e£Pacement  of  the  imperial  government 
is  only  operative  at  the  pleasure  of  Parliament.  The 
claim  has  indeed  been  raised  in  Canada  that  the  grant 
to  the  Dominion  Parliament  of  "  exclusive  legislative 
authority  "  over  the  matters  enumerated  in  the  British 
North  America  Act  was  "  exclusive  "  of  the  authority  of 
the  Imperial  Parliament  itself.  Such  a  contention  is 
at  variance  with  the  very  basis  of  the  British  constitu- 
tion, and  cannot  for  a  moment  be  accepted.  But  unless 
and  until  a  statute  of  Parliament  allows  it,  neither  the 
crown  nor  any  other  authority  in  the  mother  country 
has  any  power  over  the  colonies  beyond  that  reserved 
in  the  constituent  acts. 

These  colonies  are  thus  left  free  to  manage  their  own 
internal  concerns.  This  includes  the  very  important 
privilege  of  making  their  own  tariff.  All  of  the  autono- 
mous colonies  have  availed  themselves  of  this,  and  have 
erected  protective  tariffs  against  the  trade  of  the  mother 
country.  Though  recently  British  goods  have  been  ad- 


COLONIAL  GOVERNMENT 


281 


mitted  into  Canada,  New  Zealand,  Australia,  and  South 
Africa^  at  a  preferential  rate  of  duty,  it  was  long  true 
that  the  colonial  tariffs  placed  British  goods  in  the  same 
position  as  those  of  a  foreign  country.  The  colonies  have 
not  the  power  to  conclude  treaties  with  foreign  states, 
but  it  has  been  the  custom  of  Great  Britain,  in  negoti- 
ating treaties  affecting  immediately  the  greater  colonies, 
to  give  a  ready  hearing  to  the  wishes  of  her  colonial  sub- 
jects. "  It  is  an  understanding  or  even  maxim  of  the 
policy  governing  the  relations  between  England  and  the 
Canadian  Dominion,"  wrote  the  late  Sir  John  Bourinot, 
the  leading  authority  on  the  government  of  Canada, 
"that  Canadian  representatives  shall  be  chosen  and 
clothed  with  all  necessary  authority  by  the  Queen  in  coun- 
cil to  arrange  treaties  immediately  affecting  Canada, 
and  all  such  treaties  must  be  ratified  by  the  Canadian 
Parliament."  The  form  of  government  prevalent  in  the 
responsible  colonies  is  virtually  the  same  as  in  Eng- 
land, except  that  the  existence  of  the  constituent 
statutes  introduces  everywhere  the  principle  of  consti- 
tutional limitations  analogous  to  what  is  found  in  the 
United  States.  The  governor  exercises  a  nominal 
authority  similar  to  that  of  the  crown.  The  real  execu- 
tive is  the  prime  minister  and  his  cabinet,  whose 
tenure  of  power  is  depender  t  upon  the  continued  sup- 
port of  the  majorit  *f  the  lower  house.  The  Canadian 
senate  is  a  nomina.jd  body  of  liniitel  members,  but 
the  nominations  are  made  ou  the  advice  of  the  ministry, 
and  not,  as  in  the  representative  colonial  councils,  at  the 
pleasure  of  the  crown.   The  same  is  true  of  the  legis- 

^  Canada,  Tariff  Acts,  1807-1007 ;  South  Africa,  1003,  New  Zealand, 
lOOS,  Australia,  1908. 


1 


;  4 

il 


M 


282    THE  STRUCTURE  OF  THE  GOVERNMENT 

lative  councils  of  New  Zealand  and  Newfoundland.  The 
upper  house  of  Australia  is  elective,  and  the  Senate  of 
South  Africa  partially  so. 

India,  whose  conditions  are  altogether  unique,  stands 
apart  from  the  rest  of  the  British  colonial  system.  Here 
a  vast  population,  numbering  in  all  about  three  hundred 
million  and  presenting  the  widest  varieties  of  racial 
character,  customs,  and  creeds,  are  more  or  less  under  the 
control  of  the  United  Kingdom.  About  seventy  million 
of  these  are  found  in  the  semi-independent  native  states, 
the  rest  fall  under  the  government  of  what  is  techni- 
cally called  British  India.  The  government  of  India  is 
divided  between  the  home  authorities,  the  central  gov- 
ernment in  India,  and  the  subordinate  or  provincial 
governments.  At  the  head  of  the  home  government  is 
the  crown,  acting  through  the  secretary  of  state  for 
India.  With  this  secretary  is  adjoined  a  special  coun- 
cil composed  of  former  residents  in  India,  holding  office 
for  ten  years,  and  not  eligible  to  sit  in  parliament.  The 
expenditure  of  the  Indian  revenue  must  be  sanctioned 
by  the  secretary  and  a  majority  of  the  council.  All 
other  business  done  in  the  United  Kingdom  in  reference 
to  India  is  conducted  by  means  of  the  council,  but  in 
some  matters  of  a  diplomatic  character,  as  in  dealings 
with  native  states,  the  secretary  acts  alone.  In  India 
itself,  the  supreme  executive  power  lies  in  the  gover- 
nor-general, or  viceroy,  who  is  appointed  by  the  crown. 
He  has  an  executive  council,  which  includes  the 
commander-in-chief  and  the  highest  officials.  For  legis- 
lative purposes,  the  council  is  increased  by  sixteen 
members  appointed  by  the  viceroy.  Ine  provincial  gov- 
ernments, under  governors  (appointed  by  the  crown)  or 


■    f 


^^ 


COLONIAL  GOVERNMENT 

lientenant-gOTernors  (appointed  by  the  governor-gen- 
eral) or  chief  commissionera  (appointed  by  the  gover- 
nor-general in  council)  assisted  by  councils,  are  simi- 
lar in  construction  to  the  central  jvernment.  There  ia 
thus  no  attempt  at  self-go vernmeni  in  either  the  central 
or  provincial  adniinistratiun  of  British  India.  It  is 
only  in  the  municipal  governments  (by  virtue  of  acts 
of  Parliament,  1882  and  1884)  that  the  elective  princi- 
ple has  been  introduced.  Over  the  native  states  Britain 
exercises  a  varying  degree  of  control.  They  contain  no 
British  officials,  except  an  advisory  resident ;  they  raise 
their  own  annies.  But  they  can  hold  no  diplomatic 
intercourse  with  one  another  or  with  the  outside  world, 
and  have  no  right  to  make  war  or  peace.  Britain  also 
reserves  the  penalty  of  dethronement  as  a  punitive 
power  over  the  native  princes. 

8.  Imperial  Federation.  The  question  of  greatest 
interest  in  connection  with  the  large  self-governing  col- 
onies of  Great  Britain  is  their  political  future.  Their 
rapidly  increasing  population  and  the  development  of 
their  natural  resources  throw  into  a  strong  light  the 
important  position  they  are  destined  to  hold  in  the 
course  of  the  century  now  opening.  The  idea  of  their 
manifest  destiny  as  independent  states,  prevalent  fifty 
years  ago,  has  now  receded  into  the  background.  The 
new  wave  of  imperialism  that  has  affected  public  opin- 
ion in  all  the  great  states  of  the  world  has  fascinated 
the  national  ambitions  of  all  the  British  subjects  with 
the  possibility  of  the  future  power  of  their  colossal 
en^pire.  The  smaller  destiny  of  isolated  independence 
is  set  aside  in  favor  of  participating  in  the  plenitude 
of  power  possible  in  union.     The  combined  efforts  of 


•284     THE  STRUCTURE  OF  THE  GOVERNMENT 

Britain  and  the  colonies  called  forth  hy  the  Transvaal 
War  have  done  much  to  strengthen  this  feeling.   But 
with  the  acceptance  of  this  new  point  of  view,  the 
troubled    question    of   interimperial    relations    again 
looms  large  upon  the  horizon.     The  question  is  almost 
identical  with  the  great  colonial  controversy   of  the 
eighteenth  century  already  discussed.     But  the  frame 
of  mind  in  which  it  is  approached  on  Loth  sides,  and 
the  riper  political  experience  now  available,  remove  it 
to  another  plane.     Yet  it  does  not  seem  possible  that 
another  generaticn  can  go   by  and  find   Canada  and 
Australia  still  outside  of  the  imperial  councils;  it  hardly 
seems  possible  that  the  group  of  ministers  who  control 
the  foreign  policy  of  the  empire  can  permanently  re- 
main the  appointees  of  the  electorate  of  the  British 
Isles,  to  the  exclusion  of  the  British  dominions  beyond 
the  seas.    If  independence  is  no  longer  to  be  the  future 
ideal  of  the  colonies,  and  since  geographical  reasons 
forbid  a  complete  amalgamation,  't  looks  as  if  the  mani- 
fest destiny  of  the  colonial  system  must  now  be  sought  in 
imperial  federation.   The  movement  that  has  been  made 
in  that  direction  has  enlisted  the  support  of  influential 
men  in  all  parts  of  the  empire ;  but  as  yet  they  are 
only  a  minority.     It  seems,  nevertheless,  as  if  the  con- 
tinued growth  of  the  colonies,  and  the  more  and  more 
imperati  e  needs  of  imperial  defense,  will  force  the  ques- 
tion to  the  front.   The  difficulty  to  be  overcome  is  g^reat. 
If  a  federal  parliament  is  formed,  it  obviously  will  not 
exercise  authority  over  the  internal  affairs  of  the  Brit- 
ish Isles.    There  must  therefore  be  two  parliaments 
iu  Great  Britain  itself,  the  insular  parliament  and  the 
supreme  fedei-al  body.   It  will  cot  therefore  be  sufficient 


COLONIAL  GOVERNMENT 


iR5 


to  aduit  colonial  repregentntives  to  the  parliament  at 
Westminster,  but  will  be  neeuHsary  to  tutully  ricuiiHtniet 
the  legislative  iwwer  in  the  United  Kingdom.  The 
dead  weight  of  inertia  to  be  encountered,  before  hucIi 
a  change  can  be  effected,  will  be  realized  by  uU  who 
are  aquainted  wit!'  the  Hritiith  i>olitioul  temperament. 
9.  Recent  Colonial  Expansion  of  European 
States.  But  it  is  now  necessary  to  turn  to  the  consid- 
eration of  the  colonial  expansion  in  recent  times  of 
the  other  great  states  of  Europe,  and  the  methods  thty 
have  adopted  in  the  administration  of  their  de])en- 
dencies.  Since  the  year  18b »  the  territorial  area 
claimed  by  the  great  powers  as  their  dependencies  has 
vastly  increased.  The  available  parts  of  Asia,  uud  the 
unclaimed  islands  of  the  Pacific  have  fallen  into  Euro* 
pean  hands;  the  largest  prey  has  been  found  in  the 
continent  of  Africa,  which  has  ])ractically  been  jiar- 
celed  out  among  the  great  states.  France,  which  had 
commenced  the  conquest  of  Algiers  as  early  as  1830, 
has  extended  its  possessions  in  north  Africa,  and  holds 
not  only  all  Algeria,  but  Tunis,  French  West  Africa, 
the  Sahara,  Wadai,  Senegal,  French  Guinea,  the  Ivory 
Coast,  Dahomey,  and  French  Congo.  This  territory  in- 
cludes nearly  all  of  the  desert,  the  larger  part  of  tlu-  val- 
ley of  the  Niger,  and  central  Africa  north  of  the  Congo. 
The  island  of  Madagascar  was  seized  in  1895.  France 
has  also  (beginning  in  1861)  obtained  a  large  part 
of  Indo-China  (forming  the  dependencies  of  Cochin 
China,  Tonkin,  Annam,  and  Cambodia).  The  French 
dependencies  now  include  in  all  an  area  of  4,776,000 
square  miles,  and  a  population  of  41,653,000  people. 
As  the  larger  part  of  this  area  is  occupied  by  an  un- 


it 


286    THE  STRUCTURE  OF  THE  GOVERNMENT 


oiviliied  native  population  (in  Madagascar,  for  ex- 
ample,  there  were  in  1911  some  seven  thousand  six 
hundred  French  in  a  population  of  8,054,000),  it  has 
remained  to  a  great  uxtunt  either  under  military  gov- 
ernment (aH  in  eentral  Africa)  or  under  appointed  ufA- 
oials  with  military  support  (Madagascar,  liido-Chinu). 
Where  posHible,  however,  in  the  older  colonies^  of 
France,  self-government  is  intro<lueed  ;  MartinKpie  and 
Guadalou|)e  have  each  elected  councils  ;  so  tuo  iius  New 
Caledonia  in  the  south  Pacific.  Algeria  is  governed  as 
part  of  France,  being  divided  into  departments  and  re- 
presented in  the  Senate  and  in  the  Chamber  of  Deputies. 
Nowhere  has  more  thought  been  directed  to  the  theory 
of  colonial  government  than  in  France,  the  largest  part  of 
the  theort  tic:  1  literature  of  recent  times  on  the  subject 
being  French.  In  pite  of  the  fact  that  the  mainte- 
nance of  the  new  colonial  system  proves  a  heavy  burden 
on  the  French  exchequer,  the  dream  of  a  colonial  em- 
pire persists.  It  is  characteristic  of  the  French  people, 
that  while  the  English  still  keep  their  vast  colonial  pos- 
sessions unrepresented  in  the  parliament  of  the  mother 
country,  France  has  already  adopted  the  principle  of 
colonial  representation.  Cochin  China,  French  India 
(Pondicherry  and  four  other  town:;),  Guiana,  and  Sene- 
gal each  elect  one  deputy;  Gua'laioupe,  Martinique, 
and  Reunion  each  elect  two.  Tliese  last  three,  as  well  as 
French  India,  are  represented  by  one  senator  each. 

The  expansion  of  Germany,  which  began  in  1884, 
has  taken  the  form  of  establishing  "  protectorates " 
and  *'  spheres  of  influence,"  rather  than  colonial  estab- 
lishments in  the  true  sense.  The  territory  thus  brought 
into  dependence  on  the  German  empire  amounts  to 


COLONIAL  GOVERNMENT 

one  million  square  miles.  Mcnt  of  it  is  in  Africa,  and 
is  made  up  of  Togoland,  the  Cauierooiis,  German 
Southwest  Africa,  Oerniaii  East  Africa,  etc.  Tlie 
administration  carried  on  by  iniiwrinl  jjdvernors,  com- 
misHionurs,  8«cretari«s,  etc.,  is  similar  to  tliat  of  a  Hrit- 
isli  crown  colony  of  the  primary  tyiw.  There  is  scarcely 
any  European  population.  Italy  also  has  established 
African  de|)endencies  (Eritrea,  Italian  Somali  Land) 
whose  general  character  and  whose  administration  are 
similar  to  those  of  Germany.  The  colonial  posses- 
sions of  the  Netherlands,  though  not  attributable  to  the 
recent  European  expansion,  are  of  great  wealth  and 
importance.  Their  population  outnumbers  that  of  the 
mother  country  in  the  ratio  of  seven  to  one,  although 
of  the  thirty-five  million  inhabitants  less  than  one  hun- 
dred thousand  are  white.  The  elective  principle  is  no- 
where in  use.  The  governor  of  the  Dutch  East  Indies, 
the  members  of  his  assistant  council,  and  the  provincial 
"residents"  and  district  "controllers"  are  all  ap- 
pointed officials,  The  administration  of  the  colony,  how- 
ever, nmst  be  in  accord  with  the  principles  laid  down 
in  a  Du-i  a  statute  of  1854,  for  the  "government  of 
Netnerlands  India." 

IC.  The  Dependencies  of  the  United  States. 
The  most  recent  chapter  in  the  history  of  colonial  ex- 
pansion is  offered  by  the  acquisition  on  the  part  of  the 
United  States  of  a  number  of  dependent  territories. 
The  Hawaiian  Islands,  annexed  in  1898,  may  be  passed 
over ;  admitted  to  territorial  status  (1900)  and  having 
a  government  similar  to  that  of  the  other  territories 
of  the  United  States,  they  are  not  to  be  looked  upon 
as  a  dependency.   But  the  case  is  different  with  the 


288    THE  STRUCTURE  OF  THE  GOVERNMENT 


islands  acquired  by  cession  from  Spain  (1898),  as  the 
result  of  the  Spanish-American  War  (Porto  Kico,  the 
Philippines,  Guam),  and  with  Tutuila,  Manua,  etc., 
in  the  Samoan  group,  annexed  in  1899  at  the  request 
of  their  inhabitants.  Porto  Kico,  under  the  Organic 
Act  of  April  12,  1900,  is  controlled  by  a  governor 
and  an  executive  council  appointed  by  the  President 
of  the  United  States,  and  a  legislature  of  which  the 
lower  house  is  elected  by  the  peoj)le,  while  the  upper 
house  consists  of  the  executive  council.  Of  this  branch 
of  the  legislature  at  least  five,  out  of  a  total  of  eleven, 
must  be  natives  of  the  island.  The  principle  here 
adopted  of  forming  a  legislative  body  by  using  an  execu- 
tive council  containing  a  number  of  natives,  resembles 
somewhat  the  system  already  described  as  used  in  the 
government  of  British  India.  A  revision  of  the  Organic 
Act,  the  Olmstead  Bill,  —  proposing  to  confer  collective 
American  citizenship  on  the  people  of  Porto  Rico,  to 
create  a  partially  elective  senate,  and  to  separate  the 
executive  and  legislative  functions  of  the  government, 
—  passed  the  House  of  Representatives  in  1910. 

The  government  of  the  Philippine  Islands  has  now 
passed  the  constructive  stage.  For  some  time  after  the 
defeat  of  Spain,  and  even  after  the  formal  cession  of 
the  islands,  the  administration  remained  in  the  hands 
of  the  military  authorities.  This  was  superseded  by 
civil  gover'-ment  (July  1,  1901)  vested  in  a  commis- 
sion of  ofBcials  nominated  by  the  President.  An  act 
of  Congress  (July,  1902)  validated  the  creation  of  the 
civil  government  thus  established,  and  the  exercise  of 
power  gianted  to  it  by  executive  order.  The  same  act 
contained  a  general  bill  of  rights  as  a  guarantee  of  in- 
dividual liberty  and  provided  for  the  summons  of  an 


COLONIAL  GOVERNMENT 


289 


elected  legislature  after  the  pacification  of  the  islands 
and  the  completion  of  a  census.  The  central  executive 
government  now  consists  of  a  governor-general,  who 
is  also  President  of  the  Philippine  Commission,  ap- 
pointed by  the  President  of  the  United  States,  and  a 
commission,-  of  eight  members,  four  Americans  and 
four  Filipinos,  likewise  appointed.  The  Commission  acts 
also  as  the  upper  house  of  the  legislature,  the  lower 
branch,  the  Philippine  Assembly,  being  elected  on  a 
four-years  term  by  the  Christian  people  of  the  islands.^ 
The  acquisition  of  the  above  dependencies  by  the 
United  States  has  occasioned  in  recent  years  a  vast 
amount  of  discussion.  It  has  been  a  matter  of  earnest 
debate  as  to  whether  the  acquisition  of  such  distant 
insular  territory  as  the  Philippines,  peopled  by  races 
altogether  alien,  in  part  uncivilized,  and  in  part  openly 
hostile,  was  either  just  or  profitable.  Even  the  consti- 
tutionality of  such  a  proceeding  was  widely  denied. 
The  last  question  has  been  set  at  rest  by  the  interpreta- 
tion of  the  courts,  and  by  the  overwhelming  force  of  ac- 
complished fact.  The  plain  truth  is  that  at  the  making 
of  the  Constitution,  the  acquisition  of  such  territory  as 
the  Philippines  was  not  considered,  either  one  way  or 
the  other.  The  result  is  that  in  reality  the  Constitu- 
tion has  nothing  to  say  about  it.  But  the  convenient 
doctrine  of  implied  powers  has  been  made  to  meet  the 
case.  The  question  involving  the  keenest  discussion 
was  that  of  the  tariff.  It  was  held  by  many  that  tlie 
provision  of  the  Constitution  that  the  tariff  must  be 
uniform  throughout  the  United  States  prevented  Con- 
gress from  making  a  tariff  barrier  between  the  repub- 

'  The  Philippine  Legislature  electa  two  Resident  Commiaaionera  to 
the  United  States. 


i| 


hi 


290      THE  STRUCTURE  OF  THE  GOVERNMENT 

lie  and  its  new  dependencies.  The  Supreme  Court,  how- 
ever, in  the  Insular  Cases  of  1901,  has  decided  that  this 
is  not  the  case.  In  consequence  the  action  of  Congress 
in  setting  up  the  present  tariff  *  is  constitutional. 

It  may  be  observed  in  conclusion,  that  the  tendency 
of  the  United  States  in  dealing  with  its  dependencies 
has  been  to  proceed  further  in  the  direction  of  popular 
government  than  English  experience  would  warrant. 
The  system  contemplated  in  the  Philippines  of  institut- 
ing a  lower  house  elected  by  the  natives,  would  meet 
with  no  approval  if  suggested  for  the  governance  of 
British  India.  It  has  been  di£B  jlt  for  Americans,  in 
whose  minds  the  principle  of  popular  government  has 
always  assumed  a  re  sharply  theoretical  form  than 
is  current  with  the  English,  to  reconcile  themselves  to 
the  *' possession"  of  a  dependent  community.  Common 
sense  has  shown  the  impossibility  of  governing  the 
Philippine  Islands  on  the  same  plan  as  Massachusetts 
or  California.  Yet  the  positive  assertion  of  the  Declar- 
ation of  Independence  that  "  all  men  are  created  equal " 
reads  a  little  awkwardly  in  connection  with  khe  govern- 
ment of  a  group  of  islands  by  a  commission  sent  to 
them  from  a  distant  country,  and  with  the  exclusion  of 
the  unchristian  tribes  from  its  future  governance.  But 
as  usual  the  brute  force  of  circumstances  proves  too 
strong  for  abstract  theory,  even  when  clothed  with  the 
historic  authority  of  the  Declaration  of  Independence. 

^  The  tariff  as  between  the  United  States  and  Porto  Rico  was  tem- 
porary and  has  expired.  *  '.  act  of  Congrreas  of  March  8,  1002,  set  up 
a  tariff  as  between  the  Philippines  and  the  United  States  and  con- 
versely. Prodncts  of  the  islands  enter  the  United  States  at  twenty-five 
per  cent  less  than  the  tariff  rate  applied  to  foreign  countries.  The 
proceeds  are  expended  on  the  islands. 


^ik 


COLONIAL  GOVERNMENT 


291 


The  islands  have  come,  by  the  fortunes  of  a  just  war, 
into  the  possession  of  the  United  States.  It  has  be< 
come  a  moral  duty  to  govern  them,  and  only  an  infat- 
uated worship  of  political  abstractions  could  counsel 
handing  them  over  to  the  wrangling  anarchy  of  their 
half -civilized  inhabitants. 

READINGS  SUGGESTED 

Egerton,  H.  £.,  Short  History  of  British  Colonial  Policy  (1897), 
bk.  ii. 

Ridges,  E.  A.,  Constitutional  Law  of  England  (1905),  part  vi, 
chap,  ii  (The  Colonies). 

Snow,  A.  H.,  The  Administration  of  Dependencies  (1902),  chap- 
ters xxvi,  xzvii. 

FURTHER  AUTHORITIES 
Lewis,  Sir  6.  C,  Government  of  Dependencies  (1841). 
Todd,  A.,  Parliamentary  Government  in  British  Colonies  (1880). 
Payne,  E.  J.,  Colonies  and  Colonial  Federations  (1905). 
Holland,  B.,  Imperium  et  Libertas  (1901). 
Zimmermann,  A.,  Die  Europ&ischen  Kolonien  (4  vols.,  1896). 
Colonial  Administration,  U.  S.  Bureau  of  Statistics  (1901). 
Arnold,  W.   T.,  Roman    System  of  Provincial  Administration 

(1879). 
Cotton,  T.  S.,  and  Payne,  £.  J.,  Colonies  and  Dependencies  (1883). 
Bancn  r!,  j.,  History  of  the  United  States  (1834-74). 
Lodge,  H.  C,  Short  History  of  the  Tnglish  Colonies  in  America 

(1881). 
Seeley,  Sir  J.  R.,  Expansion  of  England  (1883). 
Pownall,  T.,  Admi.  'stration  of  the  Colonies  (1764). 
Reinsch,  P.  S.,  Colonial  Government  (1902). 
Leroy-Beaulieu,  De  la  Colonisation  chez  les  Peuples  Modemes 

(1902). 
Ireland,  A.,  Tropical  Colonisation  (1899). 
Morris,  The  History  of  Colonisation  (1902). 
Reed,  W.,  Problems  of  Expansion  (1900). 
"Willoughby,  W.  F.,  Territories  and  Dependencies  of  the  United 

SUtes  (1905). 


fill 


ill 


CHAPTER  VII 


LOCAL  GOVERNMENT 

1.  Local  and  Central  Ooyernment  Disting^uislied.  —  2.  Areas  of  Local 
GoTernment  j  the  United  States,  France,  England.  —  3.  Composition 
and  Powers  of  Local  Governing  Bodies ;  the  United  States.  —  4. 
England.  —  6.  France.  —  6.  Prussia.  —  7.  Local  Taxation ;  the  pro- 
perty tax  of  the  United  States.  —  8.  Systems  of  Local  Taxation  in 
Other  Countries.  —  9.  Reform  of  the  American  System. 

1.  Local  and  Central  Government  Distin- 
gnished.  Hithvi.o,  our  discussion  of  the  structure  of 
government  has  been  confined  to  the  consideration  of 
those  governing  bodies  whose  authority  extends  over 
the  whole  state.  But  in  all  but  the  very  smallest  com- 
munities these  are  not  the  sole  organs  of  administration. 
There  exists  in  addition  a  number  of  officials  and  offi- 
cial bodies,  whose  functions  extend  only  over  a  portion 
of  the  total  territorial  area  of  the  state.  These  bodies, 
and  the  duties  that  they  perform,  are  spoken  of  under 
the  general  designation  of  local  government.  T-ocal 
government,  therefore,  will  refer  to  the  operations  of 
all  township  and  county  councils,  the  governing  bodies 
of  municipalities,  districts,  etc.  The  common-sense 
meaning  of  the  term  is  quite  clear,  but  the  definition 
of  local  and  central  government,  in  exact,  precise  form, 
is  not  so  easy.  For  it  is  to  be  observed  that  not  all  the 
governing  bodies  whose  power  extends  only  to  a  part 
of  the  state  are  to  be  classed  as  organs  of  local  gov- 
ernment ;  for  otherwise  this  would  include  the  compo  • 


LOCAL  GOVERNMENT 


293 


nent  parts  of  a  federal  state,  which  is  contrary  to  the 
evident  signification  intended.  The  state  authorities 
of  New  York  or  Massachusetts  are  not  organs  of  local 
government.  Nor  does  the  distinction  lie  in  the  extent 
of  territory  covered,  nor  in  the  number  of  persons 
ruled  over.  The  municipal  government  of  New  York 
or  Boston,  or  the  county  council  of  Lancashire,  exer- 
cises its  authority  over  a  vastly  greater  number  of 
people  than  the  state  of  Nevada ;  on  the  other  hand 
in  extent  of  territory,  the  senates  of  Hamburg  and 
Bremen,  which  are  not  merely  local  governments,  rule 
over  less  territory  than  conies  within  the  sphere  of 
the  council-general  of  a  French  department.  The  dif- 
ference between  local  and  central  government  is  not 
therefore  a  matter  of  area  or  of  population. 

The  distinction  lies  partly  in  v  '  live  constitu- 

tional positions,.jjul  partly  in  tl»e  resp  tive  nature  of 
the  public  services  performed.  In  regard  to  the  first 
point,  iFis  true  of  most  independent  states  that  the  local 
government  derives  its  powers  from  the  central  govern- 
ment, and  holds  them  at  the  pleasure  of  the  latter.  This 
is  the  case,  whether  or  not  there  is  a  written  constitution. 
In  France  and  in  Italy,  each  of  which  has  a  written  con- 
stitution, the  organization  of  the  local  government  is  en- 
tirely under  the  control  of  the  central  parliament.  It  is 
for  this  reason  that  we  do  not  think  of  the  Swiss  can- 
tons or  the  "  states"  of  the  United  States  as  organs  of 
local  government ;  for  these  component  parts  oi  a  fed- 
eral system  are,  within  the  sphere  of  their  own  compe- 
tence, quite  independent  of  the  central  federal  author- 
ity. But  the  distinction  thus  made  is  not  universally 
true.  Though  it  applies  to  nearly  all  independent  states, 


I 


294     THE  STRUCTURE  OF  THE  GOVERNMENT 


IP1 


4  IM 


it  is  not  the  case  with  the  organs  of  local  government 
(townships,  county,  and  municipal  authorities)  in  the 
separate  conimunwealths  of  the  United  States.  These 
certainly  are  organs  of  local  government,  and  yet  to  a 
great  extent  they  exist  by  virtue  of  the  state  constitu- 
tion, and  could  not  be  put  out  of  existence  at  the  will 
of  the  state  legislature. 

The  other  point  of  distinction  between  local  and  cen- 
tral  government  consists  in  the  different  nature  of  the 
services  accomplished.  This  requires  some  further  ex- 
planation. The  various  functions  performed  by  the 
asfencies  of  the  state  for  the  benefit  of  the  citizens  will 
roughly  fall  into  two  classes.  Some  of  them  will  be  in 
the  interest  of  the  community  generally,  and  the  benefit 
thereby  effected  will  not  be  assignable  to  any  single  part 
of  the  country.  For  example,  the  protection  afforded 
by  the  arm^  and  navy  whereby  foreign  conquest  is  pre- 
vented, is  a  benefit  shared  by  all  the  inhabitants  alike. 
The  same  will  be  true  of  all  the  large  class  of  public 
works,  the  advantage  and  purpose  of  which  may  be  said 
to  be  national.  There  will  also  be  a  number  of  regula- 
tive functions  to  be  performed,  —  the  institution  of  the 
criminal  law,  the  control  of  marriage  and  divorce,  law 
regulating  contracts,  sales,  etc.,  all  of  which,  to  be  effec- 
tive, must  be  uniform.  The  whole  class  of  functions  thus 
indicated  will  properly  fall  within  th*"  'Province  of  the 
central  government.  But  in  addition  to  these,  there  are 
other  state  activities  (for  it  must  be  recollected  that 
both  local  and  central  government  form  a  part  of  the 
organization  of  the  state)  of  quite  a  different  character. 
Here  the  benefit  to  be  conferred  only  affects  a  small 
portion  of  the  community,  and  is  obviously  assignable  to 


dki 


LOCAL  GOVERNMENT 

a  particular  area.  The  lighting  of  a  town,  the  erection 
of  a  bridge  over  a  country  road,  the  establishment  of  a 
street-car  system,  are  matters  of  this  sort.  Here  it  seems 
reasonable  that  the  advantage,  the  cost,  and  the  control 
of  the  enterprise  should  be  looked  upon  as  solely  the 
concern  of  those  who  are  affected  by  it. 

Such,  then,  is  the  general  distinction  between  the  du- 
ties of  central  and  local  governments.  The  public  ser- 
vices of  the  latter  will  be  found  on  examination  to  refer 
mainly  to  the  maintenance  of  schools,  hospitals,  asylums, 
bridges,  roads,  parks,  etc.,  and  the  management  of  local 
public  utilities,  such  as  lighting  plants,  transportation 
systems.  The  activities  of  local  government  are  thus 
concerned  mainly  with  real  property  in  various  forms  ; 
it  represents  the  collective  activity  of  the  citizens  di- 
rected towards  the  creation  and  control  of  such  tangi- 
ble utilities  (roads,  bridges,  water  supply)  as  are  of 
general  benefit  in  their  particular  area,  and  indivisi- 
ble among  the  separate  citizens.  The  services  thus  per- 
formed may  be  better  understood  by  contrasting  them, 
with  such  regulative  legislative  activities  as  the  making 
of  the  criminal  law,  which  belongs  to  the  central  gov- 
ernment. In  spite,  however,  of  the  obvious  nature  of  the 
general  distinction,  the  functions  of  local  and  central 
government  shade  and  blend  into  one  another.  In  some 
cases  what  is  evidently  a  local  matter  as  to  expense  and 
immediate  benefit,  is  yet  in  other  aspects  a  matter  of  gen- 
eral concern.  This  is  seen  in  the  case  of  schools.  It  is 
of  evident  universal  concern  that  all  the  citizens  should 
be  educated,  and  it  is  therefore  within  the  proper  prov- 
ince of  the  central  government  to  make  education  com- 
pulsory, and  to  prescribe  the  general  plan  upon  which 


t 


266     THE  STRUCTURE  OF  THE  GOVERNMENT 

it  shall  be  based.  It  may  also  properly  defray  a  part  of 
the  cost,  leaving  to  the  local  government  the  immediate 
control  and  the  main  part  of  the  cost,  at  least  of  pri- 
mary schools. 

2.  Areas  of  Local  Oovenunent;  the  United 
States,  France,  England.  From  this  general  con- 
sideration of  the  nature  of  local  government,  we  may 
pass  to  some  of  the  special  problems  which  arise  in  its 
construction  and  conduct.  These  we  may  group  under 
three  heads:  (1)  the  question  of  local  areas,  and  here  we 
shall  have  occasion  to  contrast  the  orderly  "  multiple 
system"  in  use  in  the  United  States  with  the  confusion 
of  the  English  areas ;  (2)  the  composition  of  local  gov- 
erning bodies,  and  their  relation  to  the  central  execu- 
tive, in  connection  with  which  the  centralized  system 
of  France  may  be  compared  with  the  decentralization 
in  England  and  in  America ;  (3)  the  question  of  local 
taxation,  involving  an  examination  of  the  American 
property  tax,  and  the  systems  in  use  in  other  places. 

The  institution  of  local  government  everywhere  ne- 
cessitates the  division  of  the  total  territory,  not  only 
into  one  set  of  subordinate  areas,  but  into  several.  In 
the  United  States  we  have  townships  and  counties; 
in  England  parishes,  districts,  and  counties  (with  other 
divisions) ;  in  France,  communes,  cantons,  arrondisse- 
ments,  and  departements.  In  the  United  States  and  in 
England  we  have  in  addition  to  these  the  municipal  areas 
occupied  by  town  and  city  governments.  The  reason 
for  having  more  than  one  set  of  divisions  will  be  pLiin. 
Different  public  utilities  will  naturally  spread  tlieir 
effect  over  areas  of  different  size.  Thus  it  will  require, 
let  us  say,  only  twenty  families  to  support  a  country 


LOCAL  GOVERNMENT 


297 


school ;  but  the  same  number  of  families  could  not  with 
advantage  erect  and  maintain  a  lunatic  asylum  for  their 
use.  Nor  presumably  could  a  hospital  or  a  poorhouse  bo 
supported  out  of  so  small  an  area.  It  becomes  plain, 
then,  that  local  government  demands  the  making  of 
several  areas  adapted  to  the  respective  "  rarity "  or 
^^denseness"  of  the  function  to  be  performed.  But 
for  convenience'  sake  it  will  be  well  to  make  these 
areas  as  few  as  may  bo,  and  to  group  together  those 
•    nch  roughly  correspond. 

As  tb<3  basis  of  the  areas  of  local  government,  thcro 
will  generally  be  found  in  old  countries  such  as  Eng- 
land, France,  or  Prussia,  a  primitive  unit  of  settlement 
whose  history  is  long  antecedent  to  that  of  the  central 
government  itself.  Such  is  the  English  parish,  whose 
ecclesiastical  name  has  superseded  the  original  Saxon 
"township,"  the  French  commune,  and  the  Prussian 
gemeinde.  In  its  origin  this  represents  the  little  com- 
munity of  neighbors  living  together  in  a  hamlet,  or 
in  adjacent  rural  settlements,  and  conducting  their 
joint  concerns  by  some  form  of  common  management. 
Where  such  exists  it  is  plainly  desirable  to  adopt  it  as 
the  primary  area  of  the  local  government  of  the  modern 
state.  There  is,  however,  this  disadvantage,  that  in  the 
course  of  their  long  history  the  original  parishes,  etc., 
will  have  grown  vastly  different  in  size  and  population. 
In  England,  for  example,  out  of  a  total  of  about  15,000 
parishes,  the  smallest  contains  less  than  fifty  acres,  the 
largest  over  10,000 ;  eleven  parishes  (in  1891)  had  no 
inhabitants,  and  the  most  populous  (Islington)  con- 
tained 319,000  inhabitants.  Similarly  in  France  some 
commi   js  are  rural  areas  or  mere  hamlets,  while  others 


1  i 

1 


298     THE  STRUCTURE  OF  THE  GOVERNMENT 

are  great  cities.  In  spite  of  the  distortion  of  area  t'lus 
occasioned,  it  is  advisable  to  retain  such  historic  areai 
in  the  frame  of  local  government.  For  they  represent 
an  essentially  organic  unit,  and  one  which  offers  al- 
ready a  common  economic  and  social  life  as  a  basis  for 
political  construction.  Above  such  areas  as  these  will 
come  larger  units  (the  counties,  districts,  etc.)  repre- 
senting the  performance  of  public  duties  such  as  road- 
making,  erection  of  poorhouses,  hospitals,  jails,  etc., 
"which  demand  a  wider  supjiort  than  that  given  by  the 
smallest  local  community.  The  number  of  gradations 
in  the  ascending  scale  of  local  areas  varies  from  coun- 
try to  country,  and  will  be  best  understood  by  a  brief 
comparative  review  of  the  division  adopted  in  some 
leading  states. 

The  United  States  is  singularly  fortunate  in  the 
configuration  of  its  local  areas.  They  are  in  part 
historic,  and  in  part  deliberately  constructed  prior  to, 
or  at  the  same  time  as,  the  settlement  of  the  land.  The 
towns  (townshii-s)  of  Massachusetts,  for  instance,  and 
the  counties  of  Virginia  may  be  called  historic  or  organic 
areas.  They  represent  the  original  grouping  of  settlers 
in  their  first  occupancy  of  the  colony.  But  one  has  only 
to  glance  at  tne  map  of  such  a  state  as  North  Dakota  or 
Kansas  to  see  that  here  the  form  of  the  local  area  has 
been  a  matter  of  deliberate  construction.  The  town- 
ships, the  sections  into  which  they  are  divided,  and  the 
counties  of  wliich  tliey  form  a  part,  are  rectangular 
figures  constructed  on  a  common  plan.  But  in  the 
greater  number  of  the  commonwealths  in  the  United 
States,  whether  in  regular  lines  or  not,  we  find  each 
commonwealth  divided  into  townships,  which  grouped 


LOCAL  GOVERNMENT 


together  make  up  counties.  In  some  states,  as  in  New 
England,  the  townships  have  come  first,  and  the  county 
is  made  up  by  a  subsequent  addition  of  townships ; 
in  the  South  the  reverse  has  been  the  case,  and  the 
«  "'ginal  area  was  the  county,  subdivided  later  to  make 
townships.  In  the  newer  states,  townships  and  counties 
have  been  made  at  the  same  time.  But  the  excellence 
of  the  arrangement  of  the  areas  of  local  government 
in  the  United  States  lies  in  the  fact  that  the  larger 
areas  are  multiples  of  the  smaller  ones ;  township  lines 
do  not  cross  county  lines.  The  result  is  that  all  the 
inhabitants  of  any  township  belong  to  the  same  county. 
This  will  be  seen  to  have  a  uiost  important  bearing  on 
the  adjustment  of  local  financial  burdens. 

The  division  of  areas  in  France  is  based,  as  in  the 
United  States,  on  the  multiple  plan.  To  this  general 
scheme,  however,  the  hJHtoric  commune  is  a  disturbing 
exce])tion.  There  may  be  several  communes  in  an  ar- 
rondisFemeiit  (as  is  generally  the  case,  since  the  total 
communes  number  36,000),  or,  as  in  the  case  of  Paris, 
several  arrondissements  iu  a  commune.  But  r<bove  the 
commune  the  areas  fit  into  one  another ;  the  canton 
(wliich  is  only  an  electoral  and  judicial  district,  and  not 
a  seat  of  government)  is  in  every  case  a  part  of  an  ar- 
rondissement ;  the  latter  itself  is  a  subdivision  of  the 
largest  area,  the  departement.  With  the  exception  again 
of  the  commune,  all  these  areas  represent  deliberate 
construction,  involving  to  some  extent  the  sacrifice  of 
the  historic  division  of  the  country.  They  were  made 
in  1790  by  the  Constituent  Assembly,  the  first  national 
parliament  of  the  French  Revolutionary  era.  This  is 
reflected  in  the  fact  that  the  departments  are  approxi- 


!     I'      iS 


I 


I     I 


300  THE  STRUCTURE  OF  THE  GOVERNMENT 
mately  of  equal  size.  Some  of  the  more  extreme  con»tnio. 
tionista  of  the  ei»ch  wished  to  subdivide  Franco  into  a 
number  of  rectanjjles,  exactly  similar  and  exactly  equal, 
disregarding  at  the  same  time  the  geographical  config- 
uration of  the  country  and  the  hiHtoric  associations  of 
provinces,  towns,  and  districts.  This  was  not  done,  how- 
ever, and  the  departments  as  constructe*!  conform 
pretty  much  to  the  physical  features  of  the  country, 
ancl  are  named  after  the  mountains,  rivers,  bays,  etc., 
which  they  contain  or  atljoin. 

In  England,  and  indeed  in  the  British  Isles  generally, 
the  utter  confusion  into  which  the  areas  of  local  govern- 
ment had  fallen  has  causotl  one  of  the  administrative 
problems  of  ihe  nineteenth  century.    In  Saxon  times 
the  township,  the  hundrwl,  and   the  shire  formed   a 
simple  multiple  system  with  local  self-governing  bodies. 
But  the  hundred  fell  into  decay,  the  township  (taking 
its  ecclesiastical  name  of  parish)  became  irregular,  and 
lost  most  of  its  civil  authority,  and  in  place  of  the  local 
•53lf  -  vernnifrist   of   township  and  county  was  substi- 
tuted first  the  control  of  the  king's  sheriff,  and  finally 
the  almost  universal  administrative  jurisdiction  of  the 
local  justices  of  the  peace.    For  special  purposes  —  the 
care  of  the  poor,  highways,  burial,  sanitation,  schools 
—  special  areas  were  addud,  having  little  to  do  with 
parish  or  county  lines,  and  undor  a  separate  govern- 
ing body.    The  result  previous  to  the  reforms  to    be 
described  later  was  comph-te  confusion.    The  situation 
is  thus  described  by  Dr.  William  Odgers,  recorder  of 
Winchester: '    "  In  1883  England  and  Wales  were  di- 

1  Local  Government,  1901 ;  an  excellent  book,  which,  however,  refew 
only  to  local  government  in  England. 


LOCAL  GOVERNMENT 


301 


vuled  for  local-government  purposes  into  the  following 
areaH :  There  were  52  countiee,  239  municipal  lM>r- 
ou^^liH,  70  inipruvement-aet  ilintricts,  1000  urban  aiin- 
itary  clistricts,  41  |)ort  sanitary  authorities  and  577 
rural  sanitary  ilistriets,  2051  school  hoard  dintriets, 
U40  unions,  194  lighting  and  watching  districts, 
14,946  poor-law  i)ariHhcs,  50<]4  highway  pitrisht's,  not 
included  in  urban  or  highway  districtH,  and  aliout  13,000 
ccclesia-Htical  parishes.  The  total  nuinberof  local  author- 
ities who  then  taxed  the  English  rate-payer  was  27,009, 
and  they  taxetl  him  by  means  of  18  different  rates." 
With  one  trifling  excei)tion,  "  all  the  various  areas  in- 
tersected and  overlapped  each  other."  The  means  that 
have  recently  been  taken  to  rectify  the  entanglement 
thus  occasioned  will  form  the  subject  of  a  later  para- 
graph. 

3.  Composition  and  Powers  of  Local  Govern- 
ing Bodies ;  the  United  States.  Let  us  now  consider 
the  composition  and  powers  of  local  governing  bodies, 
und  their  relation  to  the  central  authority.  Here  we 
may  distinguish  two  broadly  contrasted  methods  of  con- 
struction. The  one  is  the  system  of  dccent.-alization, 
or  local  autonomy.  By  this  the  control  of  local  affairs 
is  vested  in  a  set  of  officials,  elected  by  the  people  of 
the  locality  itself.  Subject  to  certain  general  regula- 
tions which  proceed  either  from  the  central  authority 
or  from  the  constituent  power  (expressed  in  a  written 
constitution)  which  is  behind  both  the  central  and  the 
local  organization,  the  fullest  latitude  is  given  to  the 
citizens  of  the  locality  in  the  management  of  their 
public  affairs.  The  other  system  is  that  of  centraliza- 
tion.  Here  the  management  of  local  affairs  is  largely 


ill 

I 


WmM 


I.  - 


i 

s 


302     THE  STRUCTURE  OF  THE  GOVERNMENT 

controlled  by  a  set  of  officials  appointed  by  the  central 
government.  The  former  system  prevails  in  complete 
form  in  the  United  States,  and  to  a  slightly  less  degrt  ? 
in  England.  The  latter,  or  centralized  system  !-  in 
use  in  France.  In  the  kingdom  of  Prussia,  som^  liiii'^ 
of  a  combination  of  the  two  has  been  put  into  pn  ctiic. 
A  brief  review  of  the  governing  bodies  thus  establisued 
in  the  different  countries  will  help  us  to  a  judgment 
as  to  the  peculiar  political  purposes  and  the  relative 
merits  of  the  two  systems. 

In  the  United  States,  both  in  the  North  and  South 
and  in  the  new  states,  local  autonomy  prevails.  The 
form  which  it  assumes  differs,  however,  to  some  extent. 
In  the  New  England  states  the  primary  area  of  local 
government  is  the  historic  "  town  "  or  township,  origi- 
nally formed  by  the  joint  settlement  of  a  group  of 
emigrants.  Its  government  has  already  been  referred 
to  in  connection  with  direct  legislation  in  a  preceding 
chapter.  The  original  organ  of  its  government  is  the 
mass  meeting  of  the  qualified  voters,  called  the  town 
meeting.  In  places  that  have  grown  too  populous  for 
such  a  form  of  government,  the  town  meeting  is  re- 
placed by  elected  municipal  government,  —  in  Massa- 
chusetts, for  example,  towns  of  over  twelve  thousand 
inhabitants  are  erected  into  municipalities.  But  in  less 
populous  areas,  the  town  meeting  still  exists.  It  is  held 
once  a  year  (with  extra  sessions,  if  necessary),  usually 
in  the  spring,  though  in  Connecticut  the  regular  meet- 
ing is  in  the  autumn.  Its  business  is  to  elect  the  officers 
of  the  township  for  the  ensuing  year,  to  vote  on  the 
prospective  expenditure  of  money,  and  the  basis  of  its 
assessment,  and  other  local  matters  that  may  be  brought 


LOCAL  GOVERNMENT 


303 


before  it.  "When  the  town  meeting  is  not  in  session,  its 
authority  passes  to  the  officers  whom  it  has  eleeted. 
These  are  the  group  of  selectmen,  varying  from  three 
to  nine  in  number ;  the  town  clerk,  who  keeps  its  rec- 
ords ;  the  treasurer  and  the  assessors,  who  are  en- 
trusted with  the  important  duty  of  setting  a  value  on 
the  property  of  the  township  for  the  collection  of  taxes ; 
in  addition  to  these  are  a  collector  of  taxes,  school- 
committee  men,  and  minor  officers.  This  system,  it  will 
be  seen,  erects  the  township  into  a  complete  local  de- 
mocracy, a  republic  within  a  republic,  as  it  .vere.  The 
authority  of  the  superior  officials  of  the  state  over  the 
affairs  of  the  township  is  reduced  to  a  minimum.  It 
must  be  recollected,  of  course,  that  under  the  Ameri- 
can system,  the  state  constitution  itself  acts  as  a  check 
upon  the  powe^-  of  the  local  authorities,  prescribing 
the  limits  of  their  authority,  often  laying  down  the 
maximum  of  their  taxing  power,  an«l  the  form  of  taxa- 
tion which  they  are  authorized  to  use.  If  they  exceed 
their  legitimate  powers,  the  usual  method  of  judicial 
redress  through  the  courts  can  be  brought  into  play. 
The  area  superior  to  this,  the  county,  is  in  New  Eng- 
land merely  a  grouping  of  townships,  whose  governing 
authority  is  an  elected  body,  the  functions  of  which 
are  very  restricted.  In  Massachusetts  there  are  three 
commissioners,  one  elected  each  year,  and  serving  for 
three  years.  Their  duties  consist  in  apportioning  taxes 
for  county  purposes  among  the  towns  according  to  the 
system  discussed  later,  in  erecting  and  looking  after 
county  buildings,  and  maintaining  county  roads,  in  is- 
suing licenses,  etc. 

In  the  South  the  position  of  county  and  town  is 


304      THE  STRUCTURE  OF  THE  GOVERNMENT 


1* 


1 


reversed.  The  county  is  the  historic  area,  originally 
used  for  judicial  purposes,  and  extended  in  use,  later, 
to  other  administrative  functions.  The  township  repre- 
sents a  subsequ'^nt  subdivision  of  the  county,  especially 
for  the  purpose  of  maintaining  primary  schools.  But 
in  soK  >  states  the  county  exists  alone,  without  the 
township.  The  organization  of  the  Southern  county  is 
based  on  local  autonomy.  At  its  head  is  the  elected 
board  of  county  commissioners,  with  whom  are  asso- 
ciated a  treasurer,  superintendents  of  the  poor  and  of 
education,  sheriff,  and  other  officers.  Where  no  town- 
ship exists,  the  commissioners  of  the  county  conduct 
the  whole  local  administration  (roads,  poorhouses,  jails, 
etc.) ;  where  the  township  has  been  introduced,  the 
things  handed  over  to  its  elected  officers  vary  very 
much. 

In  the  central  Atlantic  states,  and  to  the  west  of  the 
AUeghanies,  we  no  longer  find  either  township  or 
county  assuming  the  same  preponderant  position  as  in 
New  England  or  the  South.    Both  township  ounty 

exist,  governed  by  officers  elected  by  the  ^  and 

dividing  the  local  government  between  them  according 
to  the  nature  of  the  service  to  be  performed.  Some- 
times the  one  and  sometimes  the  other  has  been 
historically  antecedent.  In  New  York,  Pennsylvania, 
Delaware,  and  New  Jersey,  the  township  was  the  origi- 
nal area,  an  organic  unit  based  on  settlement.  For 
this  reason  we  still  find  the  annual  town  meet"  in 
rural  New  York,  presided  over  by  the  justice  of  the 
peace,  electing  officers,  passing  by-laws,  and  voting 
taxes.  But  in  the  central  Atlantic  states  the  existence 
of  a  larger  and  artificial  area  in  the  shape  of  the 


LOCAL  GOVERNMENT 


305 


"  riding,"  acted  as  the  starting-point  for  the  introduc- 
tion of  county  government.  In  the  northwestern  states 
the  county  has  generally  preceded  the  township.  In 
Illinois,  most  of  whose  Southern  settlers  in  early  times 
came  from  Virginia,  the  county  was  first  introduced. 
But  here,  as  in  a  great  many  other  states,  the  needs  of 
school  regulation  served  to  introduce  township  govern- 
ment. By  the  system  of  surveys  made  by  authority  of 
Congress  (beginning  with  the  land  ordinance  of  1785), 
the  land  in  all  new  territory  has  been  cut  up  into 
squares  six  miles  each  way,  and  thus  containing  thirty- 
six  square  miles.  One  square  mile  in  each  has  been 
devoted  by  the  national  government  to  the  maintenance 
of  public  schools.  It  has  thus  happened  that  in  many 
cases  the  word  "township"  was  first  used  merely  as 
the  designation  of  the  tract  of  land  six  miles  square. 
Later  on,  as  settlement  grew,  the  election  of  officers 
for  the  public  business  of  the  township  naturally  fol- 
lowed. But  in  other  states  the  township,  though  the 
county  has  existed  side  by  side  with  it,  has  been  from 
the  first  the  chief  area  of  local  government.  This  has 
happened  in  Michigan,  whose  first  settlers  came  from 
New  England,  and  transplanted  their  local  institutions. 
The  town  meeting  is  in  use  in  Michigan  almost  in  the 
same  way  as  in  Massachusetts.  Within  the  township 
itself  there  is  often  found  as  a  subordinate  area  the 
school  district,  with  separate  elected  officers  (trustees, 
directors,  etc.),  who  apjwint  teachers,  supervise  the  ex- 
penditure of  money  on  buildings,  etc.  But  this  is  not 
universal,  a'  in  many  places  —  in  Massaclmsetts  and 
Pennsylvania,  for  example  —  the  school  district  is 
amalgamated  with  the  township. 


Ifl 
■  V 


■'  I 


306 


:iIE  STRUCTURE  OF  THE  GOVERNMENT 


i 


-I  r 


The  above  are  the  only  organs  of  government  that 
operate  in  the  rural  parts  of  the  country.  But  there 
are,  in  addition  to  these,  the  urban  organizations  (cities, 
towns,  villages,  and  —  in  Pennsylvania  —  boroughs) ; 
the  exact  form  of  government  varies  from  state  to 
state.  Cities  and  towns,  etc.,  are  sometimes  organized 
by  virtue  of  a  general  statute  or  constitutional  pro- 
vision, which  makes  it  possible  for  any  locality  having 
a  certain  population  to  adopt  a  municipal  government. 
Sometimes  their  form  of  administration  is  given  to 
them  by  a  special  act  of  the  legislature.  It  may 
approximately  be  said  that  the  latter  is  the  case  in 
regard  to  the  larger  cities,  the  smaller  ones  coming 
under  a  general  law.  In  all  cases  the  government  is 
democrd.tic  and  autonomous.  The  control  of  the  city  is 
in  the  hands  of  officers  elected  by  the  qualified  voters 
among  its  inhabitants,  or,  if  not  directly  elected,  at  any 
rate  appointed  by  some  one  else  who  is  himself  elected. 
In  some  states  (Virginia)  the  city  government  excludes 
the  county ;  in  others  the  county  remains,  forming  a 
part  of  the  city,  or  including  the  city  as  part  of  itself. 
The  government  of  an  American  city  resembles  in  its 
structure  that  of  one  of  the  states.  At  its  head  is  an 
elected  mayor,  as  chief  executive  officer,  with  a  large 
number  of  subordinates,  partly  elected,  partly  ap- 
pointed. There  is,  in  addition,  a  legislative  or  quasi- 
legislative  body  in  the  form  of  the  city  council,  gener- 
ally made  up  of  two  different  sets  of  members  —  the 
aldermen  and  the  councillors  —  who  are  elected  for 
different  terms  and  different  districts.  The  earlier  ten- 
dency, which  originated  in  the  prevalent  belief  in  the 


ilf 


LOCAL  GOVERNMENT 


307 


omniscience  of  any  legislative  body  and  a  distrust  of 
executive  officers,  was  to  place  the  bulk  of  the  authority 
in  the  hands  of  the  council,  and  to  give  the  mayor  as 
little  discretionary  power  as  possible. 

The  change  of  public  opinion  in  this  respect  (al- 
ready leferred  to  in  a  preceding  chapter)  has  caused 
a  contrary  poli-y.  The  concentration  of  authority 
iu  the  hands  of  one  man,  rather  than  of  a  whole 
body,  carries  with  it  a  definite  location  of  responsi- 
bility. One  man,  conspicuous  by  the  isolation  of  his 
office,  aware  that  he  alone  is  answerable,  and  that 
the  blame  of  negligence  cannot  be  shifted,  c.d 
having  at  the  same  time  the  power  to  act  unhamp- 
ered by  idle  discussion,  is  more  likely  to  prove  effi- 
cient than  a  committee  whose  members  can  shift 
to  one  another's  shoulders  the  blame  of  their  joint 
misc'eeds. 

In  Boston,  for  ex.  mple,  the  administration  is  vested 
in  a  mayor  elected  for  four  years,  but  subject  to  recall 
after  two  years,  and  a  city  council  of  nine  members, 
elected  at  large  for  three-year  terms.  The  mayor  has  a 
veto  over  the  acts  of  the  council,  and  appoints  nearly 
all  the  heads  of  departments,  boards,  and  commissions. 
By  the  charter  of  greater  New  York,  amended  in  1901, 
the  city  government  centres  in  a  mayor,  elected  for 
four  years,  and  a  board  of  seventy-three  aldermen, 
elected  for  the  same  term.  The  mayor  has  very  great 
power.  He  can  absolutely  veto  any  grant  of  a  city 
franchise,  and  has  a  partial  veto  over  ordinary  legis- 
lative acts  of  the  board  of  aidermen.  He  appoints 
the  heads  of  fourteen  out  of  the  fifteen  administrative 


i 


r  li 
;   (I 


308      THE  STRUCTURE  OF  THE  GOVERNMENT 


M 
ill 


r 


departments  (fire,  education,  water  supply,  etc.),  and 
has  power  to  remove  most  of  them.  He  appoints,  also, 
the  civil  service  commissioners.  Each  of  tlie  separate 
boroughs  of  greater  New  York  has  its  president,  who 
controls  the  street  paving,  the  sewers,  etc' 

The  most  important  of  all  questions  in  connection 
with  city  government  is  not  its  construction  but  the 
scope  of  its  operation,  the  kind  of  public  services  which 
it  is  to  undertake,  whether  or  not  it  shall  operate  its 
own  lighting  plant,  car  service,  etc.  But  the  consider- 
ation of  this  topic  will  fall  under  a  later  chapter. 

4.  England.  The  distinctive  feature  of  American 
local  government  has  been  seen  to  be  the  great  extent 
to  which  autonomy,  or  self-government,  prevails.  The 
same  feature  is  to  be  observed  in  the  local  government 
of  England,  as  recently  reconstructed ;  but  previous  to 
the  reconstruction  acts  of  thn  last  half  of  the  nineteenth 
century,  this  was  not  the  case.  The  greater  part  of  local 
jurisdiction  had  been  placed,  not  all  at  once  but  bit  by 
bit,  in  the  hands  of  the  justices  of  the  peace.  The  Tanc- 
tions  of  these  officials  had  become  so  numerous  as  to 
defy  anything  but  a  purely  alphabetical  enumeration  ; 
they  included  such  important  matters  as  the  levy  of 
the  county  rate,  the  issuing  of  liquor  licenses,  the  con- 
duct of  asylums,  and  the  supervision  of  prisons.  In 
their  judicial  capacity  these  officials  tried  criminal 
cases.  The  justice  of  the  peace,  appointed  by  the 
crown,  on  the  advice  of  the  lord  lieutenant  of  the 
county,  did  not  represent  the  principle  of  local  self- 
government.   He  was  the  nominee  of  the  central  gov- 

^  D.  B.  Eaton's  Government  of  Municipalities  is  a  standard  work 
upon  the  subject  of  city  goTemment. 


LOCAL  GOVERNMENT 


309 


ernment,  and  in  many  cases  was  acting  as  the  agent  of 
one  of  its  departments,  of  the  local  government  hoard, 
the  board  of  trade,  etc.  In  addition  to  the  justices, 
various  special  bodies  had  been  created  in  the  course 
of  the  nineteeuxii  century,  occupying  some  of  the  con- 
flicting areas  already  mentioned.  The  board  of  guar- 
dians (by  the  poor  law  amendment  act  of  1834)  had 
control  of  the  care  of  the  poor  in  a  "  union  "  of  par- 
ishes, the  board  being  composed  of  the  local  justices  to- 
gether with  elected  members.  The  burial  acts  (1852 
and  others)  constituted  burial  boards,  elective  bodies 
operative  over  a  parish  or  larger  districts.  Finally 
there  were  added,  in  1870,  school  districts,  with  elec- 
tive school  boards.  The  parisli  itself  remained  as  an  ec- 
clesiastical area,  but  exercised  also  through  its  officials, 
or  through  its  general  vestrr  meeting,  minor  ci\'il  func- 
tions. These  and  other  bodies  made  up  a  niedley  of  au- 
thoi*ities,  whose  areas  of  jurisdicti(-n  were  inextricably 
confused,  and  whose  composition  gave  but  little  scope 
to  local  self -governance.  The  government  of  cities  and 
towns  which  had  grown  up  under  special  charters,  and 
was  often  in  the  hands  of  a  small  portion  of  the  inhab- 
itants (sometimes  oi  a  close  corporation),  was  also 
hopelessly  confused  and  hopelessly  at  variance  with  any 
principle  of  popular  government. 

Though  much  of  the  older  confusion,  at  least  as 
viewed  by  an  American,  remains,  a  great  deal  has  been 
done  to  place  local  government  in  England  upon  a 
more  reputable  footing.  Two  main  objects  have  been 
kept  in  view,  —  the  rectification  of  areas  and  the  intro- 
duction of  local  self-government.  AVith  this  object,  a 
series  of  reforming  acts  has  been  passed :  the  munici- 


310      THE  STRUCTURE  OF  THE  GOVERNMENT 

pal  corporation  acts  of  1835  and  1882»  tlw  loeal  gorcrn- 
ment  act  of  1888  (referring  mainly  to  county  govern- 
ment), the  local  government  act  of  1894  (for  jjarishes 
and  districts),  the  L  jndou  government  act  of  1899,^d 
the  education  act  of  1902.  The  general  effect  of  "the 
reform  is  as  follows.  The  jusfiee  of  the  peace  is  rele- 
gated to  his  judicial  sphere,  retaining  hut  few  of  his 
administrative  functions.  The  old  Saxon  system  of 
three  ascending  areas  with  elective  self-government 
(township,  hundred,  and  county)  reappears  in  the 
present  parish,  district,  and  county.  To  the  county  is 
given  an  elected  council,  with  wide  range  of  local  power. 
The  elected  district  council  has  authority  over  sanita- 
tion,^lotments,  certain  licenses,  and  other  things.  The 
parishes  inside  the  area  of  towns  are  not  affected  by 
the  reform,  but  the  rural  parishes  have  now  elective 
self-government.  If  the  jjarish  has  less  than  three 
hundred  inhabitants,  it  exercises  its  government  by- 
means  of  a  general  "parish  meeting/'  on  the  lines  o£- 
the  American  town  meeting,  but  with  much  less  authot- 
ity,  fo-  the  sphere  of  parish  operations  is  small.  In 
the  larger  parishes  councils  are  elected.  The  school 
district  under  the  act  of  1902  disappears,  and  the  con- 
trol of  schools  is  vested  in  a  committee  of  the  county 
council,  having  as  a  subordinate  authority  a  body  of 
managers  for  each  school.*  The  reforms  also  intro- 
duce eTecHve  self-government  into  the  cities  and  towns, 

1  The  violent  opposition  to  the  act  arose  not  from  this  aspect  of  its 
provisions,  but  from  the  fact  that,  in  unifying  the  churcli  schools  with 
the  board  schools,  it  contrived  to  allow  the  former  to  get  a  share  of 
the  proceeds  of  local  taxation.  It  amounted  therefore,  in  the  eyps  of 
its  adversaries,  to  a  device  for  making  rate-payers  of  all  denominations 
contribnte  to  the  support  of  the  schools  of  the  Church  of  England. 


LOCAL  GOVERNMENT 


311 


in  the  shape  of  toayor,  aldermen,  and  councillors;  hut 
the  relation  of  the  cities  to  the  counties  in  which  tl\^y 
lie  is  not  always  the  same.  Some  are  administrative 
counties  (Southampton,  etc.),  or  are  "  county  boroughs  " 
(Liverpool,  Manchester,  and  about  sixty  others),  and 
stand  quite  apart  from  the  county  government.  Below 
these  are  graded  classes,  which  fall  to  an  increasing 
t'Xtent  within  the  regulation  of  the  county  authori- 
ties. London  stands  by  itself.  It  contains  within  it  the 
small  central  portion  (about  one  mile  square)  known 
f»s  the  city  of  London,  and  governed  as  before  by  the 
lord  mayor  and  the  "courts"  of  which  he  is  presi- 
dent, the  court  of  common  council  (composed  of  alder- 
men and  councillors)  being  the  chief.  Outside  of  this 
\\e^  the  vast  "  county  of  London  "  (with  ••,  population 
of  4,522,961  in  the  census  of  1911),  under  the  control 
of  an  elected  county  council.  This  whole  area  (except 
the  city)  is  subdivided  into  twenty-eight  "metropoli- 
tan boroughs,"  each  with  an  elected  council.  The  re- 
sult of  these  various  reforms  is  ihat  throughout  the 
whole  system  the  central  government  has  withdrawn 
from  its  former  control,  in  favor  of  the  autonomy  of 
elected  local  authorities.  Such  management  as  it  still 
retains  is  in  the  hands  of  the  local  government  board, 
a  body  consisting  of  a  president  (who  is  a  member  of 
the  cabinet,  and  who  is  the  acting  power)  and  other 
cabinet  officers,  nominally  associated  with  him.  But 
the  duties  of  the  board  consist  merely  in  supervision ; 
it  does  not  appoint  local  officials,  and  its  chief  function 
of  importance  is  to  sanction  financial  measures  of  the 
subordinate  autliorities. 
&  France.   In  France  local  government  assumes 


i  ■ 

! 


ill  f 


?'■  • 


i 


I; 

L 


312      THE  STKLCTURE  OF  THE  GOVERNMENT 

an   entirely  different  character  from   that  found   in 
America  and  England.   The  distinguishing  feature  is 
its  highly  centralized   form,  and  the  great  degree  ot 
dependence  ir  nhich  all  local  authorities  are  placed  in 
regard  to  the  central  national  government.   Take  for 
instance  tiie  administration  of  a  French  department, 
the  largest  of  the  local  areas.   At  its  head  is  the  pre- 
fect, an  official  appointed  by  the  president  of  the  re- 
public, on  the  recommendation  of  the  minister  of  the 
interior.   Ho  has  associated  with   him,  it  is  true,  an 
elected  body  known  as  the  general  council  of  the  de- 
partment.  But  the  power  of  the  latter  is  reduced  to 
the  smallest  compass.   It  is  allowed  by  law  only  two 
regular  annual  sessions,  the  one  of  fifteen  days,  the 
other  of  a  month.    It  has  no  true  taxing  power,  for  the 
amount  of  money  whioli  it  may  use  and  the  manner  of 
raising  it  are   both  regulated   by  the  French   parlia- 
ment.  In  "^he  spending  of  the  money  thus  acc-uing  to 
it,  it  does  not  act  on   its  own  initiative,  for  it  is  the 
prefect  who  draws  up  the  budget  which  is  annually 
submitted  to  it.    Even  then  the  expenditure  as  finally 
voted  requires  the  asse"*  "f  the  president  of  the  re- 
public.  The  latter  has  u-o.,  the  power  to  dissolve  the 
council,  a  power  which  may  be  exercised  even  by  the 
prefect  if  the  council  outsits  its  statutory  term.    If  it 
exceeds  the  scope  of  its  legal  competence,  its  acts  can 
be  declared  void  by  the  president.    Its   members  are 
unpaid,  their  attendance  is  compulsory,  they  are  for- 
bidden to  adopt  any  resolutions,  etc.,  bearing  upon  gen- 
eral politics,  nor  can  a  council  enter  into  any  political 
correspondence  or  relations  with  that  of  any  other  de- 
partment.  In  contrast  to  this  the  power  of  the  prefect 


LOCAL  GOVERNMENT 


313 


is  very  great.  At  times,  indeed,  he  merely  acts  as  the 
agent  of  the  general  government,  with  no  discretion  of 
his  own,  as  when  enacting  the  ordinances  of  the  presi- 
dent. But  in  addition  to  this,  and  to  the  duties  in  con- 
nection with  the  council  already  explained,  the  prefect 
has  a  wide  sphere  of  authority.  He  appoints  and  dis- 
misses the  teachers  in  the  government  schools,  is  at 
the  head  of  the  police,  is  recruiting  officer,  etc.  The 
same  system  on  a  smaller  scale  is  adopted  in  the  arron- 
dissement,  the  first  suhdivision  of  the  department.  At 
its  head  is  a  sub-prefect,  appointed  by  the  president ; 
the  functions  of  its  council  amount  to  little  more  than 
the  division  of  apportioned  taxes  among  the  communes. 
The  primary  unit,  the  commune,  is  in  a  slightly  less 
dependent  position.  Being  organic  and  historic,  and 
not  merely  "  geometrical,"  as  are  the  superior  units,  it 
tends  to  develop  a  greater  vitality.  Its  mayor  (since 
1882)  is  an  elected  officer.  But  its  municipal  council, 
like  that  of  the  department,  has  restricted  powers  and 
very  limited  sessions.^  It  is  subject  to  dissolution  by 
the  president,  and  can  <i  susi)ended  for  a  month  by 
the  prefect.  All  French  towns  and  cities  except  Paris 
and  Lyons,  which  have  a  special  form  of  government, 
are  organized  as  communes  on  the  same  plan. 

The  peculiar  form  which  local  government  has  thus 
assumed  in  France  has  grown  out  of  the  troubled  his- 
tory of  the  country  since  the  Revolution.  At  the  mak- 
ing of  the  first  constitution  of  that  era  (the  mouarchi- 


'  Full  details  in  reference  to  the  org'anization  of  local  povernment 
in  France  may  be  found  in  Ducrocq.  Cours  de  Droit  Administratif. 
▼ol.  i ;  and  in  iiimonet,  Traiti  EUmentaire  du  Droit  Public  et  Admini- 
itratif. 


314      THE  STRCCTURK  OF  THE  GOVERNMENT 

cal  constitution  atlopteil  in  1791)  the  refoimers  were 
fully  inspired  with  the  idea  of  local  autonomy.    The 
departments  were   erectetl  into  what  were  described 
as  "  little  republics,"  and  the  power  centred  in  their 
"  councils  general "  was  very  considerable.   Such   an 
arrangement   made   at    ^uch  a  time   served   only  to 
weaken  the  authority  of  the  central  executive  at  Paris 
to   an   alarming    degree.     Under    the    revolutionary 
government  of  the  Terrorists,  therefore,  in  1793-94, 
local   power   was   put   into   the   hands  of   "national 
agents,"  appointed  from  Paris,  and  of  special  "  repre- 
sentatives  on   mission,"  who   exercised   a  dictatorial 
power.   The   intense  centralization  thus  effected  ren- 
dered it  possible  for  the  executive  government  to  avail 
themselves  of  the  whole  resources  of  the  nation  with 
wonderful   effect.    The    same    plan   was   deliberately 
adopted  and  perfected  by  Bonaparte  under  the  consti- 
tution of  the  year  VIII  (law  of  Feb.  17, 1800),  in  which 
the  prefects  and  8ub-]irefect8  appear,  and  which  has  since 
remained  as  the  basis  of  local  government  in  i.ance. 
The  struggle  between  different  dynasties  and  parties 
for  the  control  of   the  national  government,  and  the 
successive  revolutions  (1830, 1848, 1851, 1870)  in  which 
the  struggle  has  culminated,   have  made  each  party 
willing  to  adopt  the  centralized  system  as  a  means  of 
consolidating  its  own   i)ower.      This   has   contributed 
largely  to  give  to  Paris  a  political  preeminence  not 
enjoyed  by  any  other  capit.-d.    For   the   purposes   of 
revolution,  Paris  during  the  nineteeiitlj  century  meant 
Fr.ance,  and  the  successful  seizure  of  the  central  control 
cfvrried  with  it  the  mastery  of  the  entire  government. 
The  efficiency  of  this  concentration  of  power  in  time 


LOCAL  GOVEUXMENT 


815 


of  war  or  invasion  in  very  great ;  it  innures  a  prompt 
cooperation  from  till  parts  of  the  country.  lUit  as 
against  this  must  be  set  tlie  enervating  influence  on 
local  affairs  of  government  from  above,  anil  the  temp* 
tation  of  the  central  government  to  use  Its  agents  fur 
political  purj)08es. 

6.  Prussia.  Tlie  system  of  local  government  in 
Prussia  is  far  too  complex  to  allow  of  any  adecpiatu 
description  in  brief  compass.  The  areas  are  numerous 
(provinces,  districts,  circles,  communes,  and  organ- 
ized towns).  It  contains,  however,  one  interesting  fea- 
ture, which  may  bo  noticed  in  ])assing.  As  a  compro- 
mise between  state  control  and  local  self-government, 
there  is  in  use  in  the  Prussian  provinces  a  double  set 
of  officials,  a  president  and  council  appointed  by  the 
crown,  and  a  provincial  diet  elected  by  the  represent- 
ative bodies  in  the  circles  and  choosing  its  own  exec- 
utive head  (Landeshauptmarni)  and  executive  com- 
mittee. The  spheres  of  state  authorities  and  provincial 
elective  authorities  are  kept  separate,  the  former  being 
mainly  concerned  with  supplying  information  to,  and 
acting  as  the  agent  of,  the  royal  government  at  Berlin. 
The  functionaries  of  the  Prussian  district  are  all  nom- 
inated by  the  central  government ;  of  those  of  the  cir- 
cle, the  executive  chief  is  ai>pointed  by  the  president 
of  the  province,  the  diet  is  elective.  In  rural  com- 
munes there  are  elective  assenddies,  but  there  remain 
still  communes,  if  one  may  use  the  term  to  translate 
the  word  liittcryut,  that  are  under  the  jurisdiction  of 
a  manorial  lord.  The  towns  and  cities  are  variously 
organized  on  the  elective  plan.  But  it  must  be  recalktl 
that  the  elective  system  in  Prussia  is  always  arranged 


m 


;    mi- 


If 


316      THE  STRUCTURE  OF  THE  GOVERNMENT 

on  the  division  of  classes  described  in  an  earlier  chap- 
ter. The  central  government  retains  a  supervising 
power  over  financial  measures.  The  Prussian  system 
of  combining  local  authority  with  central  control  would 
prove  quite  impossible  in  America,  owing  to  the  con- 
flict of  jurisdiction  it  would  occasion  ;  in  Prussia  such 
conflict  is  less  to  be  feared,  because  it  is  a  matter  con- 
trolled, as  already  explained  in  reference  to  France,  by 
the  administrative  officers  themselves. 

7.  Local  Tazation;  the  Property  Tax  of  the 
United  States.  We  come  now  finally  to  the  difficult 
question  of  local  taxation  and  finance.  In  the  United 
States  local  taxation  has  proved  one  of  the  most  seri- 
ous of  the  practical  problems  of  administration.  The 
peculiar  difficulty  which  has  arisen  to  a  greater  or  less 
degree  all  over  the  Union  is  of  the  following  character. 
The  state,  county,  and  township  authorities  draw  a  very 
large  proportion,  in  the  case  of  the  two  latter  practically 
all,  of  their  financial  support  from  the  proceeds  of  a 
direct  tax  laid  on  all  forms  of  property.  The  tax  ap- 
plies both  to  real  and  personal  property, — land,  houses, 
buildings,  horses,  carriages,  furniture,  stock  and  shares, 
mortgages,  bonds,  etc.  At  its  origination  it  seemed 
eminently  reasonable.  The  states  were  forbidden  to 
levy  import  and  export  duties,  and  to  levy  excise  duties 
would  tend  to  drive  out  manufactures  to  a  more  fa- 
vored locality ;  they  therefore  of  necessity  fell  back 
on  direct  taxes.  And  of  all  sucli,  a  single  tax,  laid  on 
all  forms  of  property  alike,  seemed  to  commend  itself 
as  the  most  uniform  and  the  most  equitable.  In  prac- 
tice it  has  shown  itself  to  be  distressingly  inequitable. 
This  is  due  in  part  to  the  manner  of  its  assessment, 


LOCAL  GOVERNMENT 


317' 


which  is  made  as  follows.  The  state  authorities  com- 
pute the  amount  of  the  direct  tax  needed  for  their  pur- 
poses, and  divide  it  up  among  the  counties  in  the 
proportion  of  the  value  of  assessed  property  in  each. 
To  the  sum  thus  called  for  each  county  adds  the  amount 
needed  for  its  own  use  and  then  distributes  it  in  like 
manner  among  its  townships,  again  according  to  the 
proportional  value  of  the  assessed  property  in  each. 
To  this  sum  the  township  adds  what  is  needed  for  its 
own  purposes,  usually  the  largest  amount  of  all.  The 
total  thus  reached  is  distributed  among  all  the  property- 
holders  of  the  township  according  to  their  proiwrtion  of 
assessed  property ;  in  other  words  the  total  of  the  as- 
sessed property  is  divided  by  the  total  tax  to  be  collected, 
and  a  tax  rate  is  thus  obtained  which  is  levied  on  all 
the  property.  If,  for  example,  the  total  of  the  property 
was  worth  $5,000,000,  and  the  total  tax  to  be  collected 
was  $100,000,  then  the  tax  rate  would  be  put  at  one 
fiftieth  or  two  per  cent.  Under  such  a  system,  then, 
everything  turns  on  the  assessment.  If  one  county  has 
been  assessed  for  very  much  less  property  than  it  actu- 
ally has,  then  the  amount  of  the  tax  assigned  to  it  by  t)ie 
state  will  be  very  much  less  than  it  should  be,  but  at 
the  expense  of  the  other  counties,  for  the  rate  all  round 
will  need  to  be  higher  in  order  to  supply  the  fixed 
quantity  of  money  asked  for.  Or  again  let  us  suppose 
that  in  one  of  the  townships  the  property  is  assessed  for 
very  much  less  than  it  is  worth.  Then  the  township  in 
which  the  assessment  is  too  low  is  given  less  than  its 
share  of  the  county  tax,  but  always  at  the  expense  of 
the  other  townships,  on  account  of  the  rate  being  of 
necessity  higher  than  would  be  needed  if  the  assess- 


V 


i  f 


318      THE  STRUCTURE  OF  THE  GOVERNMENT 

ment  were  larger.  Finally,  within  the  township  itself 
precisely  the  same  thing  happens  among  individuals. 
Any  one  whoso  property  is  put  at  too  low  a  valuation, 
or  not  valued  at  all,  escapes  at  the  expense  of  his 
neighbors;  and  the  more  the  property  in  general 
escapes  assessment  and  remains  invisible,  the  higher 
becomes  the  tax  rate.  Hence  has  arisen  what  is  called 
competitive  under-assessment,  the  co-  '"■a  and  town- 
ships  vying  with  one  another  in  a\      i'  >  make 

their  findable  property  as  small  as  possiLie.  The  as- 
sessors, moreover,  being  elective  officers,  elected  in  most 
cases  for  a  very  short  term,  are  personally  interested 
in  not  making  the  total  property  of  their  area  stand  at 
too  high  a  figure. 

The  upshot  has  been  that  while  the  system  was  origi- 
nally devised  as  the  most  equitable  form  of  universal 
taxation  possible,  in  its  actual  operation  nothing  could 
be  more  vicious  and  inequitable.  For  it  is  to  be  ob- 
served that  it  in  reality  discriminates  most  unfairly  be- 
tween different  kinds  of  property.  Real  estate,  for  ex- 
ample  (lands  and  buildings),  is  much  less  easy  to  conceal 
than  such  forms  of  property  as  shares  in  bank  stock, 
bonds,  debentures,  etc.  In  illustration  of  this  it  may  be 
mentioned  that  in  the  assessment  of  property  in  Brook- 
lyn in  1895,  real  estate  constituted  over  ninety-eight  per 
cent  of  the  total  values.  Some  years  ago  (1884)  a  tax 
commission  in  West  Virginia  reported  in  reference  to 
personal  property,  "  Things  have  come  to  such  a  con- 
dition in  West  Virginia,  that  as  regards  paying  taxes  on 
this  class  of  property,  it  is  almost  as  voluntary,  and  is 
considered  pretty  much  in  the  same  light,  as  donations 
to  the  neighboring  church  or  Sunday  school."    In  ad- 


I. 


LOCAL  GOVERNMENT 


319 


dition  to  this,  a  prerniitm  is  put  upon  dishonesty,  since 
people  of  a  pliable  conscience  will  find  it  easier  to 
dodge  the  assessment  than  those  of  a  more  uncom])ro- 
midiug  morality.  Even  some  of  the  measures  intended 
to  prevent  this,  as,  for  example,  the  adoption  of  a  sched- 
ule of  property  made  out  and  sworn  to  by  the  owner, 
and  the  penalties  ('  -1  and  spiritual)  for  perjury,  etc., 
accentuate  the  evil  rather  than  lighten  it.  The  worst 
feature  of  all  is  that  when  under-assessnient  once  sets 
in,  it  moves  forward  at  an  accelerated  pace.  For  the 
higher  the  rate  rises,  the  more  imperative  does  it  be- 
come for  each  individual  to  understate  his  property. 
But  the  more  the  property  is  understated,  the  higher 
the  rate  rises,  and  thus  the  worse  the  situation  is,  the 
worse  it  tends  to  become.  In  some  cases  the  rate  be- 
comes so  high  that  to  tell  the  literal  truth,  and  pay  the 
full  tax  rate,  would  mean  absolute  ruin.  Thus  in  some 
of  the  "towns"  of  Chicago,  previous  to  the  reform  o' 
the  assessment  system  a  few  years  ago,  the  rate  stood 
as  high  as  eight  and  nine  per  cent.  Now  it  must  be  re- 
membered that  this  means,  not  the  contribution  of  eight 
per  cent  of  one's  income,  but  eight  per  cent  of  one's 
capital  property.  To  actually  pay  this  and  continue  in 
business  would  not,  for  ordinary  enterprises,  be  found 
possible.  The  result  is  that  both  the  assessors  and  the 
assessed  adopt  a  rough  scale  of  depreciation,  accepting 
as  accurate  a  figure  that  is  perhaps  one  fifth  or  one 
tenth  of  the  probable  actual  value  of  the  property  con- 
cerned. Meanwhile  the  incentive  to  dishonesty  remains, 
and  a  vast  amount  of  property  escapes  untaxed.* 

'  For  detailed  statistics  as  to  the  operation  of  the  property  tax,  the 
iollowing  works  may  be  consulted :   Seligtnan,  Essays  on   Taxation, 


'i 


f 


320      THE  STRUCTURE  OF  THE  GOVERNMENT 

Throughout  the  entire  United    States  opinion  is 
agreed  as  to  the  inefficiency  and  iniquitousness  of  the 
general  property  tax.   It  has  been  condemned  by  a 
long  series  of  state  tax  commissions  held  within  the  last 
forty  years,  and  by  all  the  highest  authorities  on  the 
subject  of  public  finance.   "  Instead  of  being  a  tax  on 
personal  property,"  said  the  New  York  commissioners 
of  1872,  "  it  has  in  effect  become  a  tax  upon  ignorance 
and  honesty.   That  is  to  say,  its  imposition  is  restricted 
to  those  who  are  not  informed  of  the  means  of  evasion, 
or,  knowing  the  means,  are  restricted,  by  a  nice  sense 
of  honor  from  resorting  to  them."   The  Illinois  com- 
mission of  1886  spoke  of  it  as  "  a  school  for  perjury, 
promoted  by  law."  The  New  York  report  of  1893  says, 
"  It  puts  a  premium  on  perjury  and  a  penalty  on  integ- 
rity."  The  recent  industrial  commission  in  its  final  r«* 
port  (vol.  xix)  quotes  as  illustrative  of  the  general  feel 
ing,  the  words  of  a  special  committee  on  taxation  which 
reported  to  the  California  senate   in   1901:   "From 
Maine  to  Texas  and  from  Florida  to  California,  there 
is  but  one  opinion  as  to  the  workings  of  the  present 
system.  That  is,  that  it  is  inequitable,  unfair,  and  posi- 
tively  unjust.   Theoretically  all  property  is  called  upon 
to  bear  a  share  of  the  public  burdens  in  exact  propor- 
tion to  its  present  value.   In  practice  that  end  is  ad- 
mittedly not  even  approached.   Scarcely  a  fractional 
part  of  the  property  in  any  commonwealth  is  brought 
to  the  tax  rolls.   This  is  especially  true  of  personal 
property  in  its  most  coveted  forms,  money  and  credits." 

chaps,  i,  ii,  and  xiii,  3d  edition,  1900 ;  Ely,  Taxation  in  American  States 
and  Cities ;  Final  Report  of  the  Industrial  Commission,  vol.  xix,  pp. 
1031-1071. 


i 
1 


LOCAL  GOVERNMENT 


321 


That  the  reform  of  local  taxation  is  one  of  the  crying 
needs  of  the  American  system  of  government  is  only 
too  obvious.  But  before  considering  the  bteps  that 
have  already  been  taken  in  that  direction,  and  the  vari- 
ous plans  suggested,  it  will  be  well  to  set  in  comparison 
tlie  systems  adopted  in  other  countries. 

8.  Sjmtems  of  Local  Taxation  in  Other  Coun- 
tries. Complicated  as  is  the  local  administration  of 
England,  there  are  certain  features  of  its  financial  sys- 
tem which  merit  attention  in  connection  with  the  pre- 
sent question.  In  the  first  case  the  central  government 
does  not  divide  or  apportion  taxes  among  the  county 
councils  for  collection,  so  that  all  question  of  competi- 
tive under-assessment  as  between  counties  is  set  aside. 
Nor  is  there,  for  reasons  which  will  appear  presently, 
competitive  under-assessment  between  the  minor  areas. 
In  the  next  place  the  whole  field  of  jiersonal  property, 
tangible  and  intangible,  is  left  out  of  local  taxation. 
Thus  the  American  difficulty  of  finding  "  invisible  pro- 
perty "  is  avoided.  But  at  the  same  time  such  property 
contributes  to  the  national  finance  through  the  income 
tax,  an  adjustable  tax  ranging  from  two  to  five  per 
cent,  or  even  higher,  and  which,  among  its  other  cate- 
gories, is  levied  on  stocks,  shares,  etc.,  and  paid  at  the 
source.  Though  the  operation  of  the  income  tax  is  of 
coui'se  fallible,  and  allows  the  more  fluid  forms  of  in- 
come (professional,  etc.)  to  partially  escape,  it  never- 
theless servos  to  make  the  intangible  forms  of  property 
contribute  to  the  general  revenue  of  the  state. 

The  actual  revenues  of  the  local  autliorities  consist 
partly  of  sums  handed  over  to  them  by  the  central  gov- 
ernment, and  partly  of  "rates"  (proportional  taxes) 


322      THE  STRUCTURE  OF  THE  GOVERNMENT 

which  they  levy  on  real  property.  To  the  first  class  be- 
long certain  payments  made  by  the  national  government 
to  the  counties  (administrative  counties,  and  county 
boroughs),  representing  a  fraction  of  the  amount  received 
as  the  proceeds  of  license  taxes  (liquor,  dogs,  guns,  etc.), 
a  fraction  of  the  estate  duties  collected,  and,  under  a 
statute  of  1890,  the  proceeds  of  certain  duties  on  spir- 
its and  beet*.  In  other  words  the  national  government 
collects  various  taxes,  and  shares  them  luuong  the 
counties.  The  rest  of  the  local  income  comes  from 
direct  taxation.  The  rate  is  levied  not,  as  in  America, 
on  the  capital  value,  but  merely  on  the  annual  value 
of  real  property.  A  committee  of  the  county  council 
fixes  the  county  rate,  assigning  to  each  parish  a  stand- 
ard of  what  the  rate  is  to  produce.  This  involves  as- 
sessment as  in  America  of  the  property  value  in  the 
parish,  but  the  valuation  is  never  made  by  an  elected 
parish  ofiicer.  The  county  authorities  follow  the  valu- 
ation made  by  the  national  government  for  the  raising 
of  the  income  tax,  or  that  of  the  poor-law  authorities, 
or  at  times  make  a  valuation  of  their  own.  Boroughs, 
districts,  and  parishes  levy  similar  rates  on  the  annual 
value  of  real  property.  The  difference  in  conditions 
between  England  and  America  is  seen  in  the  fact  that 
while  the  American  property  tax  ranges  (nominally) 
from  about  one  and  one  half  to  ten  per  cent  on  capital 
value,  the  total  of  various  kinds  of  English  local  rates 
for  the  year  1895-96  stood  at  4s.  5d.  on  the  pound  of 
annual  value ;  in  other  words,  while  the  nominal  Amer- 
ican rate  is  at  one  to  ten  per  cent  of  capital,  the  Eng- 
lish rate  is  twenty-two  and  one  half  per  cent  of  income. 
Even  this  rate  is  considered  in  England  alarmingly 


LOCAL  GOVERNMENT 


323 


high.  In  the  year  1899-1900,  something  over  forty  and 
a  half  million  pounds  was  raised  by  direct  taxation, 
and  twelve  and  a  quarter  million  pounds  derived  from 
the  contributions  of  the  central  government. 

It  must  not  be  thought,  from  what  has  been  said 
above,  that  the  situation  in  regard  to  local  finance  in 
England  is  altogether  felicitous.  There,  however,  the 
feature  which  occasions  grave  apprehension  is  not  the 
method  of  assessment  and  levy,  but  the  great  increase 
of  local  expenditure  and  local  debt.  The  local  expen- 
diture of  England  and  Wales  in  1868  was  only  thirty 
million  pounds ;  in  1900  it  reached  one  hundred  and 
one  million.  Much  of  this  has  been  paid  for  with  bor- 
rowed money,  and  the  total  of  local  indebtedness  stands 
at  about  three  hundred  million  pounds.  As  a  result 
local  rates  have  increased  to  a  great,  indeed  to  an  alarru^ 
ing  extent.  The  rate  per  pound  in  1891-92  stood  at  S«. 
Sd. ;  in  1895-96  at  4«.  5d. ;  in  the  largest  boroughs  in 
1910  the  rate  exceeded  7  shillings.  It  is  true  that  the 
borrowing  power  of  local  bodies  is  subject  to  the  sanction 
of  the  local  government  board,  and  the  accounts  of  most 
local  bodies  are  audited  by  district  auditors,  appointed 
by  the  same  authority,  and  having  a  power  to  disallow 
items.^  A  further  extension  of  this  application  of  central 
control  would  seem  justified  by  the  circumstances. 

In  France^  local  government  presents  certain  fea- 
tures differing  in  a  marked  degree  from  the  systems 
both  of  England  and  America.  In  the  first  place,  use 
is  made  of  a  sort  of  internal  customs  duty,  the  oc- 
troi, levied  on  various  classes  of  goods  brought  into 

*  Odgen'B  Local  Government,  chap.  zii. 

*  For  local  taxation  in  France,  see  Leroy-Beanlien,  Traiti  de  la 
Science  de$  Finance*,  vol.  i  (6th  edition,  1899). 


324      THE  STRUCTURE  OF  THE  GOVERNMENT 


w 


towns.  This  ia  one  of  the  raa::i  resorts  of  comniuiial 
finance,  the  towns  as  already  iteen  being  organized  as 
communes.  The  same  form  of  local  tax  is  used  in 
Paris  and  Lyons.  In  the  year  1896  no  less  than  1513 
French  cities,  towns,  and  villages  made  use  of  the 
octroi,  the  revenue  thus  produced  being  about  one 
third  of  their  total  revenue.  The  chief  articles  thus 
taxed  are  wines,  beer,  and  spirits  generally,  oil,  meat, 
combustibles,  fodder,  and  building  materials.  This  part 
of  the  French  system  is  certainly  to  be  condemned.  It 
hampers  trade,  and  is  troublesome  and  expensive  in 
collection.  Unfortunately,  like  other  indirect  taxes,  it 
has  the  insidious  quality  which  renders  its  use  tempt- 
ing to  municipal  authorities.  The  employment  of  the 
octroi,  though  abolished  at  the  time  of  the  French 
Revolution,  has  steadily  increased  in  the  nineteenth 
century,  and  in  1899  about  one  third  of  the  population 
of  France  were  subject  to  it. 

For  the  rest  of  the  municipal  revenue  and  for  the 
revenue  of  the  department,  a  quite  different  plan  is 
used.  There  are  four  great  direct  taxes  levied  by  the 
French  national  government,  —  the  tax  on  real  estate, 
tax  on  personalty  and  persons  {impbt  mohilier  et  per- 
sonnel), the  door  and  window  tax,  and  the  tax  on  busi- 
ness. Of  these  the  last  named  is  a  jrraded  tax  on  all 
forms  of  business  enterprise,  varying  according  to  the 
kind  of  business,  the  magnitude  of  the  business,  and 
the  location  of  the  business.  The  whole  classiBcatinn 
falls  within  the  scope  of  the  central  government ;  there  is 
no  apportionment  among  departments,  etc.,  and  hence 
no  chance  of  competitive  under-assessment.  It  is  as  if 
the  state  of  Massachusetts  imposed  a  license  tax  on 


Lz^m 


LOCAL  GOVERNMENT 


825 


all  forms  of  business,  which,  other  things  being  equal, 
would  be  higher  in  Ik)ston  than  in  a  town  of  fifty 
thousand  people,  and  higher  in  the  case  of  bank* 
ing  business,  other  things  being  equal,  than  for  a 
grocery  business,  and  finally  would  be  higher  in  the 
case  of  a  business  employing  one  hundred  men  than 
one  which  only  employed  twenty,  still  with  the  con- 
dition  that  other  things  were  equal.  The  total  tax 
collected  would  therefore  vary  with  the  changing  fac- 
tors. Its  use  by  the  government  of  France  is  meant  to 
supplement  the  lack  of  a  national  income  tax.  Of  the 
other  taxes,  that  on  real  estate  is  based  on  what  is 
called  a  "cadastre,"  or  fixed  valuation  made  by  the 
government  on  a  basis  of  aiea,  productivity,  value  of 
buildings,  etc.  The  part  of  this  valuation  referring 
to  land  remains  unchanged  for  a  long  time  together 
(1821-90).  That  on  buildings  has  been  frequently 
revised.  The  former  portion  of  the  tax  is  apportioned, 
that  is  to  say,  the  government  decides  on  a  total  sum 
and  collects  it  from  the  departments  in  proportion  to 
the  valuation  of  their  land,  the  rate  thus  varying  as  in 
the  United  States.  In  the  case  of  the  latter  portion  of 
the  tax,  the  government  fixes  the  rate  and  takes  the 
proceeds.  It  is  the  duty  of  the  local  authorities  in  the 
arrondissements  to  share  the  apportioned  tax  among 
the  communes-,  but  as  the  valuation  on  which  they 
proceed  is  made  for  them,  they  are  in  a  totally  dif- 
ferent position  from  that  of  the  American  assessors. 
The  so-called  personalty  and  persons  tax  {impot  mo- 
hilier  et  personnel)  is  in  reality  an  apportioned  tax 
on  houses  together  with  a  capitation  tax  of  the  valr.e 
(according  to  locality)  of  three  days'  labor.    >"inalir 


Ilijfi 


!# 


a26     THE  STRUCTURE  OF  THE  GOVERNMENT 

the  "  door  and  window  tax  "  is  an  apportioned  tax  on 
houses. 

It  has  been  necessary  to  bHow  the  nature  of  these 
direct  taxes  in  order  to  explain  the  French  system  of 
local  taxation.  The  local  revanne  is  obtained  by  the 
addition  of  a  certain  percentage  to  the  sums  thus  col- 
lected. The  "  centimes  additionnels  "  as  they  are  called, 
are  settled  by  the  central  government,  and  collected 
by  its  agents.  It  is  for  this  reason  that  it  can  be  said 
of  the  general  council  of  the  department  that  it  has  no 
power  of  taxation.  The  ^'centimes  additionnels,"  or 
Bur-tax,  added  to  the  "principal"  of  the  French  direct 
taxes,  is  greater  than  the  principal  itself.  No  sur-tax  is 
added  to  the  capitation  tax  mentioned  above.* 

In  Prussia  use  is  made  of  the  octroi  ^  as  in  France, 
its  burden  falling  upon  mill-ground  articles,  cattle, 
meat,  etc.  There  are  also,  as  in  France,  aur-taxes 
added  to  the  direct  taxes  of  the  state  government  and 
other  direct  taxes  whose  proceeds  go  wholly  to  the 
local  authorities.  The  direct  taxes  of  the  first  class  in- 
elude  ^he  income  tax  and  the  tax  on  circulating  busi- 
ness :  >  ose  of  the  second  class  comprise  the  taxes  on 
lanr  ,  ouses,  and  fixed  business.  The  extra  percentage, 
or  bdr-tax,  actually  collected  varies  greatly,  but  is 
under  the  control  of  the  central  government.  The  land 
assessment  is  made  by  commissioners  appointed  by  the 
state  government,  together  with  a  staff  of  technical 
experts  in  each  province.  The  persons  liable  to  the 
income  tax  are  divided  into  classes  within  which  all 
pay  the  same.   The  assessment  is  made  by  a  special 

*  In  some  oaaei,  however,  "  extra  centimes  "  are  added  to  the  fixed 
tax  for  state  purposes.  '  The  octroi  is  not  ns-.d  bv  Berlin. 


LOCAL  GOVERNMENT 


327 


board  in  each  circle  or  county,  partly  appointed  by 
the  local  authorities,  but  in  the  majority  elected  by  the 
persons  liable  to  the  tax.  Unfortunately  the  method 
of  ascertaining  income  has  not  proved  satisfactory. 
Till  recently  (1891),  the  board  relied  largely  on  cir- 
cumstantial evidence  of  income  (style  of  house,  obvious 
expenditure,  etc.).  The  objection  that  this  was  an  in- 
quisitorial proceeding  led  to  the  adoption  of  self-assess- 
ment by  declaration.  In  spite  of  the  severe  penalties 
for  fraud,  a  great  part  of  income  escapes.  The  mode 
of  assessing  the  business  tax  is  peculiarly  interesting. 
The  French  system  of  classification  by  industries  and 
by  population  of  locality  was  abandoned  in  1891. 
Instead  of  it  businesses  are  grouped  into  four  classes 
on  a  joint  basis  of  capital  invested  and  earnings  made. 
The  assessment  of  the  top  class  is  made  province  by 
province,  by  assessors  of  whom  one  third  are  nomi- 
nated by  tho  minister  of  finance,  and  two  thirds  by  the 
committee  of  the  province  (the  executive  committee 
of  the  elected  portion  of  the  provincial  government). 
The  tax  amounts  to  about  one  per  cent  of  earnings. 
The  two  middle  classes  are  taxed  district  by  district 
(^Bezirk),  and  the  lowest  class  is  taxed  in  each  "circle," 
or  county.  The  government  assigns  a  lump  sum  (based 
on  the  average  earnings  of  included  businesses)  to 
be  collected  from  all  businesses  of  the  same  class  in 
the  same  district  (or  minor  district),  and  this  is  shared 
among  the  individual  business  concerns  by  a  tax  com- 
mittee elected  from  theii  number.  It  must  be  observed 
that  this  elected  committee  has  no  power  to  spare  its 
constituents  as  a  total.  This  form  of  tax  has  proved 
singularly  e£Bcient. 


328      THE  STRUCTURE  OF  THE  GOVERNMENT 

9.  Reform  of  the  Americui  System.    Let  ui 

now  in  the  light  of  what  has  heen  said  in  regard  to 
foreign  countrieH  consiiler  Bonio  of  the  chief  proposals 
for  the  reform  of  tlie  American  system  of  local  taxa- 
tion, and  the  btcps  that  have  already  been  taken  in 
that  direction.  In  the  Brst  place  we  have  the  frequent 
suggetttion  of  a  more  stringent  enforcement  of  existing 
laws.  This  is  what  has  been  done  in  Ohio  under  the 
'*  tax  inquisitor  law,"  whereby  county  commissionerit 
engage  an  individual  to  '^  discovi-r  "  personal  property, 
paying  him  a  proportion  of  the  tax  thereby  realized. 
In  view  of  the  obnoxious  character  of  the  property  tax 
so  generally  condemned,  mere  rigor  of  enforcement 
only  aggravates  the  situation.  Tlie  Ohio  system  intro- 
dnces  a  feature  of  management  wliich  should  have  uo 
place  in  public  administration,  except  in  dealing  with 
the  criminal  class.  Nor  is  the  system  of  making  the 
legal  assessment  value  (as  recently  done  in  Chicago) 
only  a  fraction  of  the  true  value,  of  any  permanent 
efficacy.  It  affords,  it  is  true,  the  opportunity  for  a 
general  repentance  and  a  new  start,  but  the  viciousuess 
of  the  assessment  system  is  not  altered  thereby.  The 
proposals  which  appear  to  be  substantiated  by  the  expe- 
rience of  foreign  countries  are  (1)  thr  frrnintjnn  of  thu — 
sources  of  state  and  local  revenue,  and-thm  aljwndoniiig 
of  the  system  of  apportionment,  (2)  tit«  ftfaoKtion  of  the 
property  tax  on  peraouol  pi-operty,  and  (3)  the  creation 
of  other  forms  of  revenu.9  to  Bil  the  void  thus  created 
and  to  satisfy  the  equities  of  taxation. 

Tlie  first  of  these  projwsals  has  been  endorsed  by 
the  American  League  of  Municipalities,  by  the  New 
York  State  Commerce  Convention,  and  by  various 


LOCAL  GOVERNMENT 


320 


other  l)odies.  In  Oregon  under  a  utatute  operative  in 
1905,  apportionment  of  state  tuxes  among  the  coun- 
ties is  abanduneil.  The  proportion  of  state  taxes 
paid  hy  each  county  will  depend  on  the  ratio  of  its 
own  ex|>enditure  ti»  the  total  expenditure  of  the  coun- 
ties. The  Industrial  Conuuission  in  its  Final  Report 
(1902)  recommends  that  the  states  (not  the  localities) 
abandon  the  property  tax  altogether.  In  the  second 
place  the  abolition  of  the  tax  on  jiersonalty  would 
leave  only  land  and  buildings  subject  to  the  property 
tax.  The  motive  fur  concealment  would  be  lessened, 
since  there  would  no  longer  exist  the  sense  of  injustice 
at  the  escape  of  personalty  from  a  tax  to  which  it  was 
legally  liable.  The  experience  of  England  and  Prussia 
certainly  falls  in  with  the  suggestion  of  tii-  commission 
that  this  tax  should  be  for  local  purposes  oiny.  It  might 
seem  advisable  that  when  the  system  of  elected  asses- 
sors exists  it  should  be  abandoned  in  favor  of  assessors 
apiwinted  by  the  government  of  *lie  state  and  holding 
an  independent  tenure  of  office,  fc'uch  a  suggestion  is 
but  little  consonant  with  the  current  ]ioIitieal  ideas  of 
Anjerican  people.  But  the  experienv'<  ot  European 
countries  certainly  favors  it.  A  valuation  of  land  on 
the  French  sy.st»'ni  by  general  survey  and  estimate 
would  reduce  tl  at  portion  of  the  tax  to  a  stable  basis. 
In  reference  to  the  third  question,  that  of  creating 
other  sources  of  revenue,  much  has  already  been  done 
in  some  states  and  there  is  much  that  naturally  sug- 
gests itself.  The  successful  business  taxes  of  Prussia 
and  France  seem  to  indicate  a  useful  form  of  taxation. 
The  Industrial  Commission  recommends  the  adoption 
of  taxes  of  this  nature  as  a  supplement  to  the  property 


't'l 


330     THE  STRUCTURE  OF  THE  GOVERNMENT 

tax.   In  several  of  the  Southern  states  there  already 
exist  "licenses"  or  "privilege  taxes"  which  are  of 
this  kind.   They  are  by  no  means  so  elaborate  as  the 
Continental  taxes,  varying  only  according  to  population 
or  other  evident  criteria,  but  not  proportional  to  the 
volume  of  business  transacted.    A  more  elaborate  form 
of  business  tax  with  the  Prussian  system  of  assessment 
would  be  a  decided  gain.  The  taxation  of  income  is  also 
recommended  by  the  commission  ;  theoretically  the  in- 
come tax  is  the  most  equitable  of  all,  but  experience 
shows  it  liable  to  grave  inequalities.     It  might  well 
form  a  part  of  a  reconstructed  tax  system  for  state 
purposes,  especially  if  income  from  real  estate  were 
omitted,  being  already  taxed  under  the  local  property 
tax,  and  if  the  English  system  of  tapping  the  income 
at  its  source  were  put  into  force.  Separate  income  taxes 
have  recently  lieen  levied  in  Virginia,  North  Carolina, 
and  South  Carolina.   Massachusetts  has  an  income  tax 
which  exempts  income  from  taxed  property,  and  which 
dates  from  colonial  times.    Pennsylvania  and  Louisi- 
ana attempt,  but  not  very  successfully,  to  tax  income 
under  the  property  tax.   An  amended  taxation  of  cor- 
porations —  which   are   now  taxed    in   various  wavs, 
on  the  value  or  on  the  cost  of  property,  on  capital 
stock,  on  bonded  debt,  on  gross  earnings,  on  dividends, 
on  net  t^arnings,  etc.  —  is  also  proposed.   In  summary 
it  may  be  said  that  what  is  needed  is  a  complete  recon- 
struction of  local  taxation.   The  general  object  should 
be  to  avoid  the  present  evils  of  competitive  under- 
assessment and  invisible  property  and  to  institute  a 
new  composite  system  of  revenue  calculated  to  prop- 
erly distribute  the  burden  of  taxation. 


LOCAL  GOVERNMENT 


331 


READINGS  SUGGESTED 

Hart,  A.  B.,  Actual  Governinent  (1903),  part  ir. 

Cuiirtney,  L.,  The  Working  CoiiHtitution  of  the  United  Kingdom 

(1901),  part  ii,  chap,  i,  pp.  'JOu-220. 
Lowell,  A.  L.,  Goveruinenta  and  Parties  in  Continental  Europe 

(1897),  vol.  i,  chap,  i,  pp.  36-43,  308-334. 

FURTHER  AUTHORITIES 

Odgers,  W.,  Local  Guvernuient  (1901). 
Enton,  D.  B.,  Government  of  Municipalities  (1899). 
Uucrocq,  Cours  de  Droit  Administratif,  vol.  i  (1881). 
Seligmau,  E.  R.,  Essays  in  Taxatiuu  (3d  editiou,  1900). 
Report  of  the  Industrial  Commission,  vol.  xis. 
Ely,  R.,  Taxation  in  American  States  and  Cities  (1888). 
Leroy-Beaulieu,  P.,  Traits  de  la  Science  des  Finances  (6tb  edi- 
tion, 1899),  vol.  i. 
O'Meara,  J.  J.,  Municipal  Taxation  at  Home  and  Abroad  (1894). 
Jenks,  £.,  Outline  of  English  Local  Government  (1894). 
Bryce's  American  Commonwealth  (1889),  vol.  i. 
Flake,  J.,  Civil  Government  in  the  United  States  (1891). 


CHAPTER  VIII 

PARTY  GOVERNMENT 

1.  Conflict  of  Opinion  on  the  Merits  of  Party  Government. —  2.  Origin 
and  Derelopnient  of  the  Party  System  in  England. —  3.  Origin  and 
Growth  of  Politicai  Parties  in  tha  United  States.—  4.  The  Organiza- 
tion of  American  Political  Parties. —  5.  Reform  of  the  System. —  0. 
Party  Machinery  in  Great  Britain. —  7.  The  Party  Groups  of  Con- 
tinental Europe. 

1.  Conflict  of  Opinion  on  the  Merits  of  Party 
Gtovenunent.  By  a  political  party  we  mean  a  more 
or  less  organized  group  of  citizens  who  act  together  as 
a  political  unit.  They  sliare,  or  profess  to  share,  the 
same  opinions  on  public  questions,  and  by  exercising 
their  voting  power  towards  a  common  end,  seek  to  ob- 
tain control  of  the  government.  They  constitute  some- 
thing like  a  joint  stock  company  to  waich  each  member 
contributes  his  share  of  political  power.  They  are  th.JS 
collectively  able  to  acquire  the  strength  which  it  would 
have  been  impossible  for  them,  acting  singly,  to  obtain. 
In  all  except  the  autocratic  modern  governments  this 
system  of  deliberate  collective  action  supplies  the  mo- 
tive power  which  keeps  the  wheels  of  administration 
moving.  Though  standing  almost  outside  of  the  legal 
structure  of  the  state,  party  government  is  the  vital 
principle  of  its  operation.  The  Constitution  of  the 
United  States  does  not  indeed  presume  the  existence 
of  political  parties ;  but  in  the  evolution  of  American 
government  in  the  nineteenth  century,  they  have  come 


PARTY  GOVERNMENT 


333 


to  be  its  central  feature.   In  the  United  Kingdom  the 
law  of  the  constitution  knows  nothing  of  any  such  in- 
stitution.   But  the  customary  operation  of  the  Constitu- 
tion is  altogether  based  on  the  supposition  of  this  sort 
of  collective  action.     For  the  whole  cabinet  system 
—  which  we  have  seen  to  be  the  central  fact  of  Brit- 
ish government  —  presupposes  the  united  action  wliith 
alone  can  render  its  existence  possible.    The  countries 
which  have  deliberately  adopted  parliamentary  govern- 
ment—France, Italy,  Canada,  Australia,  etc.  — have 
done  so  on  the  same  assumi)tion.    The  law  cannot,  in- 
deed, expressly  decree  the  existence  of  parties,  but  it 
can  set  up  institutions,  as  in  the  countries  named,  which 
become  meaningless  without  tliem.  For  a  proper  study 
of  modern  government  it  is,  therefore,  necessary  to  take 
full  account  of  this  form  of  joint  political  eifort  and  to 
study  the  orgi.nization  and  operation  of  modern  parties. 
We  may  thus  form  some  judgment  as  to  the  value  and 
efiBciency  of  the  political  expedient  thus  devised. 

Party  government,  indeed,  has  been  variously  judged. 
It  has  been  extolled  as  the  most  natural  and  con- 
demned as  the  most  unnatural  of  political  phenomena. 
Those  who  judge  it  harshly  are  shocked  by  the  pecu- 
liarly artificial  agreement  which  it  sets  up  among  the 
group  of  party  atlherents,  and  their  equally  artificial 
disagreement  with  their  opponents.  Each  side  remains 
in  a  state  of  willful  inconvincibility,  with  individual 
judgment  frozen  tight  in  the  shape  of  the  party  mould. 
This  kind  of  unanimity  seems  to  its  critics  false  and 
injurious ;  it  suppresses  that  very  freedom  of  individ- 
ual opinion  and  action  which  is  meant  to  be  the  vital 
principle  of  democratic  government.   Where  two  great 


334      THE  STRUCTURE  OF  THE  GOVERNMENT 

political  parties  dispute  the  field,  it  presumes,  as  has 
been  said  by  Professor  Gold  win  Smith,  '^  a  bisection  of 
human  character,"  which  does  not  in  reality  exist. 
Those  who  defend  party  government  t:ike  an  entirely 
opposite  ground.  They  draw  attentitm  to  tlie  fact  that 
in  a  certain  sense  the  bisection  of  human  nature  is  al- 
together in  accordance  with  fact.  There  are  naturally, 
they  claim,*  four  kinds  of  men,  —  those  who  wish  to 
return  to  the  methods  and  institutions  of  the  past  (ye- 
actionaries),  those  who  wish  to  retain  those  of  the  pre- 
sent (conservatives),  those  who  wish  to  reform  present 
institutions  (liberals),  and  those  who  desire  to  abolish 
them  (radicals).  If  for  evident  reasons  of  expediency 
the  two  former  classes  and  the  two  latter  act  together 
politically  we  get  a  division  into  two  great  political 
parties,  resting  on  fundamental  psychological  princi- 
ples. It  is  further  argued  that  far  from  being  in  con- 
flict with  the  theory  of  democratic  government,  it  is  the 
only  thing  which  rend  rs  the  latter  feasible.'  For/it  is 
impossible  for  all  the  people  to  rule  all  the  time  — 
taken  singly.  The  rule  of  the  people  can  only  mean 
the  rule  of  a  majority.  Now  the  only  way  in  which  any 
particular  set  of  people  can  remain  together  as  a  major- 
ity, and  thus  render  possible  a  stable  and  consistent 
administration  of  public  affairs,  is  that  the  members 
of  the  ruling  group  shall  "  agree  to  agree  "  with  one 
another.  A  modern  democratic  state  without  tliis 
somewhat  artificial  and  yet  essential  unanimity  would 
become  a  brawling  chaos  of  individual  opinions.      ^ 

The  validity  of  the  two  contentions  thus  urged  will 
depend  in  some  measure  on  the  circumstances  of  the 

*  See  W.  E.  H.  Lecky,  Democracy  and  Liberty. 


PARTY  GOVERNMENT 


335 


time  and  country.  It  often  happens  —  as  in  the  case 
of  the  slavery  question  or  the  silver  question  in  the 
United  States,  the  free-trade  question  in  England,  etc. 
—  that  some  one  paramount  political  issue  presents  it- 
self which  of  necessity  separates  the  community  into 
affirmative  and  negative  divisions.   The  importance  of 
the  issue  is  such  that  the  supporters  of  either  side  are 
perfectly  willing  to  subordinate  to  it  all  minor  matters 
and  to  act  in  concert  in  everything  for  the  sake  of  the 
main  point  to  be  gained.   Two  free-traders  or  two  free- 
silver  men  might  consent  to  vote  and  act  together,  and 
to  put  their  interests  into  the  hands  of  the  same  repre- 
sentative, even  if  the  one  of  them  was  a  prohibitionist 
and  the  other  an  anti-prohibitionist.   It  is  in  such  cases 
as  this  that  the  party  system  seems  eminently  a  defen- 
sible one ;  it  offers  a  natural  and  reasonable  method  of 
reaching  the  main  object  to  be  achieved.   This  was  the 
condition  in  the  United  States  in  the  middle  of  the  cen- 
tury. It  was  also  the  chronic  condition  in  England  dur- 
ing a  large  part  of  the  nineteenth  century,  the  general 
•i«lea  of  liberal  reform  being  opposed  to  the  general  im- 
mobility of  conservatism.  It  was  owing  to  the  existence 
of  this  state  of  things  that  party  government  grew  to  be 
invested  with  an  air  of  inevitability,  and  seemed  to  carry 
with  it  its  own  defense.   On  the  other  hand,  where  no 
such  main  issues  exist  the      rty  system  must  depend  for 
existence  on  the  strength  of  its  organization.    It  must 
have  pledges  first  and  principles  after,  and  its  members, 
having  first  decided  to  agree,  must  next  make  up  their 
minds  what  it  is  they  agree  about.   This  is  the  present 
position  of  the  party  system  in  the  United  States.   Fail- 
ing this,  for  default  of  a  main  issue,  political  parties  will 


336      THE  STRUCTURE  OF  THE  GOVERNMENT 

take  the  form  of  numerous  and  rapidly  changing  groups, 
the  government  being  carried  on  by  temporary  and 
unstable  combinations,  and  the  parties,  having  neither 
traditions  nor  standing  power,  being  animated  with  a 
dangerous  sense  of  irresponsibility.  This  is  the  position 
of  affairs  in  France,  Italy,  and  several  Continental 
countries.  At  the  present  juncture,  then,  the  party  sys- 
tem meets  with  keen  criticism  and  speculation  is  rife  as 
to  its  future  evolution. 

2.  Origin  and  Development  of  the  Party  Sys- 
tem in  England.  The  origins  of  party  government 
are  found  iu  England  and  may  be  considered  as  dat- 
ing from  the  Elizabethan  era.  The  Puritans,  opposed 
to  the  intoleran(!e  and  the  extreme  prerogative  of  the 
queen's  government,  exerted  themselves  to  gain  seats 
in  Parliament,  where  their  representatives  acted  as  an 
organized  party  in  arresting  the  royal  grants  of  mono- 
polies, etc.  On  the  basis  thus  formed  grew  up  the  popu- 
lar party,  whose  cohesion  was  rendered  stronger  by  the 
arbitrary  government  of  the  Stuart  kings.  "  Sandys, 
Coke,  Eliot,  Selden  and  Pyni,  may  be  regarded,"  says 
Sir  Thomas  May,'  "  as  the  first  leaders  of  a  regular  par- 
liamentary opposition."  As  the  resistance  to  the  royal 
tyranny  increased,  the  defenders  of  popular  rights  and 
the  adherents  of  tlie  crown  changed  from  political  par- 
ties to  the  opposing  factions  of  a  civil  war.  But  after 
the  Restoration  the  same  parliamentary  division  reap- 
pears under  the  name  of  the  Court  Party  and  the  Coun- 
try Party  of  the  reign  of  Charles  11.   With  the  debates 

*  Sir  T.  K  May  (Lord  FamborongL),  in  his  Constitutional  History, 
Tol.  ii,  cLap.  viii,  gives  an  account  of  the  rise  and  development  of  the 
party  system  in  the  United  Kingdom. 


PARTY  GOVERNMENT 


337 


over  the  Exclusion  Bill  of  1680  (for  debarring  the 
king's  brother  from  the  throne)  the  nicknames  of 
Whig  and  Torj  (terms  equivalent  to  "dough-face  "  and 
"highwayman")  first  appear.  Henceforth  for  a  century 
and  a  half  these  names  indicate  the  two  great  political 
parties  by  whom  the  parliamentary  activity  of  the 
United  Kingdom  was  controlled.  The  Whigs  were  the 
opponents  of  the  royal  prerogative  and  the  adherents  of 
the  doctrine  of  parliamentary  suj)remacy ;  the  Tories 
advocated  the  power  of  the  crown.  Their  relation  to 
the  later  parties  must  not  be  mistaken.  Neither  was  by 
its  origin  the  party  of  progress  or  reform  ;  neither  the 
party  of  stability  or  order.  They  represented  merely 
two  different  theories  of  English  constitutional  relations. 
After  the  accession  of  the  House  of  Hanover  the  two 
parties  found  their  positions  curiously  reversed.  The 
Whigs,  the  opponents  of  prerogative,  were  the  support- 
ers of  the  new  dynasty,  while  the  Tories,  the  advocates 
of  prerogative,  were  the  opponents  of  the  holder  of  the 
crown.  This  blunted  the  edge  of  their  original  hostility, 
and  helped  to  convert  them  from  the  positi(  n  of  inim- 
ical factions  to  the  decorous  and  official  form  of  opposi- 
tion since  maintained.  Moreover  the  practical  triumph 
of  the  principle  of  parliamentary  supremacy,  and  the 
recognition  of  the  hopelessness  of  the  Stuart  cause,  led 
to  an  alteration  in  the  distinctive  characteristics  of  the 
two  groups.  From  the  accession  of  George  III  onward  '„ 
the  Whigs  tended  to  become  the  advocates  of  reforri 
and  progress ;  the  Tories  placed  their  faith  in  order  and 
security.  Thus  the  two  changed  into  the  great  Liberal 
and  Conservative  parties  of  the  nineteenth  century.  The 
doctrine  of  liberalism  favored  the  increased  "  democrat- 


/ 


338      THE  STRUCTURE  OF  THE  GOVERNMENT 

ization"  of  the  constitution,  the  grant  of  equal  political 
privileges  to  all,  the  abolition  of  the  remaining  religious 
disabilities  and  tests,  the  establishment  of  economic  lib- 
erty of  trade  and  industiy.  To  this  the  Conservatives 
opposed  the  historic  view  of  political  rights  that  had 
grown  up  under  the  constitution,  the  safeguarding  of 
vested  interests,  and  the  resistance  of  dangerous  inno- 
vation. But  since  the  middle  of  the  nineteenth  century, 
these  original  characteristics  of  the  two  parties  have 
largely  been  obscured.  The  Conservative  administra- 
tions have  participated  in  many  of  the  great  reforms 
of  the  latter  part  of  the  nineteenth  century,  —  the  ex- 
tension of  the  suffrage,  the  reform  of  local  government, 
of  Irish  land  tenure,  and  so  forth.  The  present  complex- 
ion and  organization  of  party  life  in  the  United  King- 
dom will  be  considered  in  a  later  paragraph. 

a  Origin  and  Growth  of  Political  Parties  in 
the  United  States.  In  America  we  may  consider  dis- 
tinct political  parties  as  beginning  with  the  colonial 
controversies  of  the  eighteenth  century.  The  standing 
opposition  of  the  representative  portion  of  the  colonial 
governments  to  the  governor  and  his  associates,  natu- 
rally divided  political  sympathy  on  much*  the  same  lines 
as  in  the  mother  country.  As  in  England  during  the 
Stuart  period,  the  war  of  the  Revolution  changed  the 
partisans  into  armed  combatants.  But  with  the  making 
of  the  first  truly  national  government  (1787)  political 
parties  reappear  on  an  entirely  new  basis.  Those  who 
favored  th«  establishment  of  a  strong  central  govern- 
ment bee. '  known  as  the  Federalists,  while  those  in 
favor  of  i,  restriction  of  the  federal  power  were 
termed  Anti-federalists.  After  the  adoption  of  the  Con< 


PARTY  GOVERNMENT 


SS9 


stitution  the  term  Federalist  indicated  those  in  favor 
of  consolidating  and  strengthening  the  federal  power, 
while  those  in  favor  of  the  rights  of  the  states  were 
called  Kepublicans.  The  latter,  being  supported  by 
the  general  trend  of  public  opinion  in  favor  of  the 
rights  of  the  individual  and  the  restriction  of  govern- 
mental functions  to  a  minimum,  then  current  both  in 
Europe  and  America,  eventually  carried  the  day.  The 
Federalists  declined  in  numbers  and  influence,  and 
in  the  early  twenties  were  practically  extinct.  Their 
opponents  had  in  the  early  years  of  the  Constitution 
strengthened  their  hold  upon  popular  sympathy  by 
adopting  the  name  Democratic  Kepublican,  which  has 
developed  into  the  present  term  of  Democrat.  After 
the  disappearance  of  the  Federalists,  the  absence  of 
definitely  marked  political  parties  led  to  a  sort  of  inter- 
regnum known  historically  as  the  Era  of  Good  Feeling ; 
this  designation  and  the  lapse  of  time  has  surrounded 
with  an  undeserved  halo  a  decade  which  "  was  really," 
says  Professor  Hart,  "  a  period  of  bitterness  and  rancor 
and  legislative  ineptitude." ' 

With  the  advent  of  Andrew  Jackson  (1829)  the 
Democratic  party  entered  on  a  new  phase,  in  which  it 
stood  for  extreme  individualism,  the  extension  of  the 
suffrage,  and  the  rights  of  "  the  people  "  in  the  special 
sense  of  the  term.  This  raised  up  in  opposition  the 
party  of  the  Whigs,  advocates  of  strong  government, 
national  improvements  (roads,  canals,  etc.),  and  a  pro- 
tective  tariff.  The  rising  predominance  of  the  question 
of  slavery  (1820-1860)  sundered  the  Whig  party  and 
removed  them  from  the  political  arena.  In  their  place 
'  Actual  Oovernmeta  (1003). 


I;   i 


840     THE  STRUCTURE  OF  THE  GOVERNMENT 


1 


/ 


% 


•prang  up  anti^slavery  parties  of  different  degrees  of  op> 
position.  Tbe  voting  strength  of  these  was  finally  gath* 
ered  together  as  the  ReptiL  ''can  party,  opposed  to  the  fur- 
ther extension  of  slavery,  though  nut  (as  a  party)  opposed 
to  its  existence.  The  Civil  War  removed  the  main  issue 
by  abolishing  slavery.  Since  then  the  same  two  gre'it 
parties  have  remained  in  name,  but  their  evolution  in 
the  last  forty  years  has  rather  taken  the  form  of  a 
consolidation  of  the  organization  of  party  structure 
than  a  collective  adherence  to  any  single  principle  or 
policy.  The  Republicans  are  in  favor  of  protection,  but 
the  Democrats  are  certainly  not  free-traders.  Tiio 
Republicans,  but  not  all  of  them,  are  in  favor  of  the 
gold  standard,  and  for  a  time  some  of  the  Democrats, 
but  not  all  of  them,  opposed  it.  The  states  of  the  South 
have  remained  solidly  Democratic,  but  this  is  by  the 
historic  continuity  with  past  conditions.  The  plain 
truth  is  that  both  parties  are  largely  opportunistic, 
adapting  their  policy  on  current  questions  to  the  cir- 
cumstances of  the  day,  and  mainly  governed  in  their 
selection  of  political  opinions  by  the  probability  of 
political  success.  The  party  organization  has  become 
the  leading  factor,  and  the  party  opinions  have  taken  a 
secondary  place.  A  Republican  is  no  longer  to  be  de- 
fined as  a  man  who  holds  such  and  such  opinions,  but 
as  a  man  who  adheres  to  the  Republican  organization 
and  will  support  its  candidates.  At  present,  then,  the 
striking  fact  in  connection  with  American  political 
parties  is  the  complete  mechanism  of  their  organiza- 
tion. 

4.  The    Organization  of    American    Political 
Parties.  That  parties  should  have  become  highly  or- 


PARTY  GOVERNMENT 


?«l 


:a- 


ganized  is  the  natural  outcome  of  the  circumstances  of 
the  country.  Amoug  the  contributory  causes  are  to  be 
noted  in  the  first  place  the  disjunction  of  executive 
and  legislative  power,  which  naturally  calls  for  a  bond 
of  union  in  the  shape  of  a  party  organization.'  To 
this  we  muMt  add  tlie  great  extent  of  territory  to  be 
covered,  the  iinposnibility  of  selecting  candidates  for 
the  presidency,  or  for  the  state  governorships,  secre* 
tary8hips,etc.,in  any  purely  spontaneous  fashion.  Nor 
is  there  under  the  American  system  any  set  of  per* 
sons  among  those  holding  power  who  are  placed  in  the 
same  position  of  evident  ])nrty  leadership  as  has  always 
been  the  case  with  the  party  leaders  in  England.  The 
attempt  of  the  members  of  Congress  to  assume  this 
position  and  to  nominate  candidates  for  the  presidency 
in  a  party  **■  caucus,"  soon  fell  into  disrepute,  and  in 
1824  broke  down  altogether.  The  similar  attempt 
of  the  state  legislatures  in  the  decade  following  was 
equally  ineffective.  In  place  of  this  there  sprang  up  in 
the  twenties,  in  accord  with  the  general  American  idea 
of  the  sovereignty  of  the  people,  the  practice  of  hold- 
ing a  special  "  convention  "  or  meeting  of  representa- 
tives selected  by  the  members  of  a  political  party,  to 
make  the  choice  of  its  candidates.  The  system  thus 
established  grew  apace.  As  long  as  the  great  slavery 
issue  was  before  the  nation,  the  convention  failed  to 
give  to  the  political  parties  the  highly  mechanical  as- 
pect they  have  since  assumed.  But  from  the  close  of 
the  Civil  War  the  machinery  has  become  more  and 
more  definite,  until  it  has  reached  the  elaborate  form 
in  which  it  now  exists. 

*  Sm  in  this  oonnecUon  F.  Goodnow,  Adminutration  and  Politie$. 


/ 


342      THE  STRUCTURE  OF  THE  GOVERNMENT 

The  tobeiiM  of  its  construction  is  as  follows.'  Ita 
orsranization  follows  the  diviniun  of  areaM  luade  for  the 
purposes  of  elections.  In  eai'b  of  thetie  a  special  meet- 
ing of  party  adherents  is  held  for  the  selection  of  candi- 
dates. The  basis  of  it  is  found  iu  what  is  known  as  the 
primary,  often  called  a  "  caucus,"  in  the  New  England 
states.  In  theory  this  consist^  of  a  meeting  of  all  the 
qualified  party  voters  resident  in  the  smallest  voting 
area:  township,  county,  or  precinct,  a»  the  case  may  be. 
In  actual  fact  it  is  only  a  minority  of  the  voters  of  the 
party  who  are  to  be  found  at  a  meeting  of  the  primary. 
Many  absent  themselves  from  indifference,  others  fur 
lack  of  the  technical  requirements  for  admission. 
Others  properly  qualified  are  excluded  by  unfair 
means.  This  is  particularly  true  of  primaries  held  in 
urban  areas,  where  the  voters  ^ave  but  little  individ- 
ual acquaintance  with  one  another.  The  duty  of  a  pri- 
mary meeting  is  threefold.  It  appoints  the  standing 
committee  of  the  party  for  that  area,  it  nominates 
party  candidates  for  the  elections  held  in  its  district, 
and,  most  important  of  all,  it  sends  »'p  delegates  to  the 
party  meetings  held  in  the  area  of  which  its  own  forms 
a  subdivision.  In  these  larger  areas,  such  as  a  con- 
gressional district,  or  state  assembly  district,  or  state 
senate  district,  it  is  impossible  for  all  the  voters  to  be 
gathered  together.  In  them,  therefore,  the  party  meet- 
ing takes  the  form  of  a  "convention,"  comjwsed  of 
delegates  sent  from  the  primary  meeting.  Tlje  func- 
tions of  such  a  convention  are  similar  to  those  of  the 

1  Mr.  Bryoe's  admirable  description  af  party  msehinery  in  tho 
United  States,  American  Commonwealth,  vol.  ii,  part  iii,  hiw  never  been 
■urpaased.    Fur  more  recent  infomuktion  see  Hart,  Actual  Government, 


ho 


PARTY  GOVF.RNMENT  M3 

primary  itself.    It  appoints  a  committM,  it  makes  nom- 
inations for  office  in  the  ilistrict.  and  in  the  case  of 
some  areas  it  sends  up  delr^tes  to  the  state  conven- 
tion.  The  state  convention  similarly  nominates  candi- 
dates for  the  governorship,  etc.,  appointH  the  Htate  party 
cominittee,.aud  sends  delegates  to  the  iiational  conven- 
tion held  once  in  four  years.'   Thw  national  convention 
stands  at  the  ajiex  of  the  system.    It  is  held  for  the 
•election  of  the  party  candidates  for  the  prewdency  of 
the  L  nited  States.    It  consists  of  twice  as  many  mem« 
bers  as  the  state  has  members  of  Congress,  two  dele- 
gates being  sent  from  every  congressional  district,  and 
four  from  each  state  at  large  ;  these  together  with  six 
representatives  from  each  territory  make  the  full  com- 
plement of  a  national  convention.   A  duplicate  set  of 
mt  iiibers  known  as  "alternates,"  or  sub^itutes  in  case 
of  accident,  are  also  appointed.   The  ccmvention  thus 
constituted  draws  up  the  nationm  platform  of  the  party, 
and  makes  its  nominations  ioi    .he  presidency.    The 
nomination  is  made  by  t-.».'ul     iti  *  ;>  Ivepublican  party 
a  simple  majority  suffice  ;.  ii. ,;;    I'  v.,  :  ratio  a  majority 
of  two  thirds  is  needec'     iu  t!i.    K 'ivii  Ucan  party  the 
members  of  the  delega     t.  w  us  ^  ;     a.  state  may  vote 
individually  for  different  pers  ^ji     .;,  the  Democratic 
party  they  must  vote  as  a  iv.      '.  .  the  same  person. 
The  Democratic  convention  of  1912  abrogated  the  unit 
rule  except  where  demanded  by  state  law. 

The  system  as  thus  planned  is  beautiful  in  the 
symmetry  of  its  organization.   It  seems  to  offer  a  thor- 

1  Delegrates  are  sent  to  the  national  conyention  from  tho  state  con- 
Tentions,  op  from  the  congreMional  dutrict  conventions.  In  any  caie  th« 
four  delegates  oorresponding  to  the  represenUtion  of  the  stete  in  th« 
Senate  are  sent  ftom  the  state  convention. 


II 


I  r 


/ 


344     THE  STRUCTURE  OF  THE  GOVERNMENT 

oughly  just  method  of  selecting  party  candidates,  and 
one  in  which  all  are  equally  entitled   to  participate. 
But  unfortunately  in  practice  it  has  opened  the  way  to 
the  gravest  political  abuses.   In  the  first  place  it  makes 
a  considerable  demand  upon  the  time  and  energies  of 
the  voters,  a  demand  rendered  all  the  greater  by  the 
multiplicity  of  American  elections.   There  is  a  natural 
temptation  for  the  voter  to  stay  away  from  the  pri- 
mary, and  to  content  himself  with  whatsoever  candi- 
dates it  may  select.   The  conduct  of  the  primary,  and 
as  a  consequence,  of  the  superior  coventions  to  which 
it  is  contributory,  thus  falls  under  the  control  of  the 
professional  "  politicians  "  and  their  hangers-on.  Hence 
arises  the  now  familiar  phenomenon  of  the  "party 
ring"   and   the  party  "boss,"  for  whom  the  elabo- 
rate  system  of  party  machinery  serves  as  a  ready- 
made  instrument  of  political  control.   The  more  the 
primary  falls  under  the  control  of  an  inside  ring,  the 
more  are  the  ordinary  citizens  tempted  to  stay  away 
from  it,  deploring  its  vices,  yei  unable  single-handed 
to  combat  them.   In  the  city  primaries  the  number  of 
those  entitled  to  vote,  who  actually  do  vote,  is  seldom 
more  than  one  third,  and  often  drops  to  the  merest 
fraction.    Even  the  number  of  those  entitled  to  vote 
in  the  primaries  has  often  been  only  a  small  part  of 
the  voters  of  the  party.    For  as  long  as  the  primaries 
remained  self-constituted  bodies,  it  was  possible  for 
them,  as  for  example  in  New  York,  to  adopt  exclusive 
rules  of  admission  which  shut  out  all  but  the  favored 
few.   The  persons  who  were  entitled  to  vote  in  a  pri- 
mary, and  actually  did  vote,  became  only  a  fraction  of 
a  fraction.  Indeed  the  whole  of  the  elaborate  party 


gm 


PARTY  GOVERNMENT 


345 


machinery  that  we  have  described  comes  to  be  operated 
not  from  ita  own  spontaneous  force,  but  at  the  bidding 
of  the  clique  of  inside  politicians,  who  "  work  the  ma- 
chine." Instead  of  the  real  selection  by  a  party  con- 
vention, we  have  the  adoption  by  the  convention  of  a 
"  slate,"  or  list  of  names  already  prepared  for  them. 
The  worst  feature  of  all  is  the  class  of  men  thus 
brought  into  American  politics,  and  the  point  of  view 
they  bring  with  them.  The  nature  of  the  party  ma- 
chine lends  itself  to  repel  the  honest  and  to  attract  the 
unscrupulous.  Relatively  few  men  have  sufficient  pub- 
lic spirit  to  consent  from  purely  patriotic  motives  to 
seek  office  by  such  obnoxious  means.  The  opportunity 
is  thus  opened  to  second-rate,  shifty,  and  self-seeking 
aspirants,  to  whom  the  whole  party  machinery  merely 
offers  a  method  of  gaining  an  easy  livelihood,  embel- 
lished with  a  tawdry  conspicuousness.  Too  much  stress 
must  not,  however,  be  laid  on  the  sinister  side  of  Amer- 
ican party  life.  It  is  not  true,  as  a  foreign  observer 
might  be  inclined  to  think,  that  the  American  people 
as  a  nation  are  corrupted  by  it.  In  moments  of  stress 
or  in  the  presence  of  a  great  national  crisis,  the  artifi- 
cial barriers  set  up  by  such  a  system  are  easily  pushed 
aside,  and  the  right  men  shoulder  their  way  to  the 
front  of  public  life.  But  in  the  ease  of  quiet  times, 
and  in  the  absorbing  prosperity  of  a  great  industrial 
civilization,  the  machine  falls  back  again  into  the  hands 
of  those  who  make  it  their  business  to  run  it. 

5.  Reform  of  the  System.  The  (juestion  of  find- 
ing a  remedy  for  the  evils  of  a  j)arty  machine  has  long 
been  discussed.  The  only  real  antl  )>ermanent  cure 
would  be  found  in  rousing  the  ordinary  voter  from  his 


346      THE  STRUCTURE  OF  THE  GOVERNMEin" 


habitual  indifference  and  absorption,  said  bringing  bnt 
to  take  an  active  interest  in  the  exercise  of  his  full 
political  rights.  This,  however,  is  a  matter  quite  beyond 
legislative  control,  aad  can  only  come  with  tlie  growtk 
of  vigorous  public  sentiment  in  regard  to  the  duties  of 
a  citizen,  stimulated  by  the  object-lessons  afforded  by 
rampant  corruption.  It  may  in  any  case  be  doabted 
whether,  with  the  present  system  of  short  terms  of  office 
and  numerous  elections,  such  an  active  public  life  of 
the  citizens  at  large  could  be  gained  without  seriuss 
detriment  to  their  other  social  activities.  It  would  be 
easier  to  reform  the  operation  of  American  parties,  if 
the  attempt  were  accompanied  by  the  lengthening  of 
elective  tenure  of  office.  Why,  for  example,  should  an 
elective  officer  hold  office,  as  do  a  vast  number  in  the 
United  States,  including  two  etsite  governors  —  for  one 
year  only  ?  Or  a  member  of  a  legislature,  as  is  cus- 
tomary, for  two  years  o.ily  ?  There  is  nothing  pecu- 
liarly democratic  about  the  space  of  twelve  months ;  if 
change  is  a  good  thing  in  itself,  why  not  hohl  a  new 
election  every  month  ?  With  fewer  elections  the  ordi- 
nary voter  would  be  able  to  concern  himself  mwe  di- 
rectly with  those  there  were,  and  the  practical  exclusion 
of  the  majority  from  political  control  would  no  longer 
be  ])ossible. 

Even  within  the  limits  of  legislative  action  attempts 
have  already  been  made  to  remedy  the  evil  operation 
of  the  party  system.  The  first  of  the.se  U  the  plan 
of  making  the  primary  meeting  of  a  political  party 
a  legally  organized  body  instead  of  a  self-constituted 
group.  This  is  the  intention  of  the  so-ealled  "primary 
election  laws"  which  have  been  enacted  within  the  lut 


PARTY  GOVERNMENT 


M7 


twenty  years  in  most  of  the  leading  states.  Massachu* 
setts,  New  York,  New  Jersey,  Pennsylvania,  Illinois, 
Ohio,  Michigan,  Maryland,  South  Carolina,  Georgia, 
and  other  states  have  already  adopted  statutes  r{  this 
kind.  These  laws  provide  that  due  public  notice  shall 
be  given  of  the  time  and  place  of  primary  elections ; 
that  the  elections  shal  be  by  ballot,  and  that  the  ex- 
pense shall  be  paid  by  the  state.  The  laws  are  usually 
compoLiory  in  cities  and  optional  in  rural  districts. 
The  above  proviiiions  still  leave  the  question  of  admis- 
sion to  the  primary  to  be  regulated  by  the  party  itself. 
But  in  some  states  the  law  goes  further,  and  defines 
tibe  qualification  required  for  admission  to  the  primary. 
Tliere  is  n*  uniformity  in  the  state  laws  in  regard  to 
admission  to  vote  at  a  primary,  but  two  leading  systems 
may  be  di^oguished.  Some  states  hold  '•''  o)>en  prim- 
aries "  at  which  the  voter,  by  the  use  of  the  secret  bal- 
lot, may  cast  his  vote  as  he  pleases  without  declaring 
to  which  party  he  belongs.  In  these  cases  the  law  has 
to  be  framed  to  prevent  the  voter  from  voting  for  more 
than  one  party.  In  other  states  ^* closed  primaries" 
are  established.  Admission  to  vote  in  a  closed  primary 
implies  some  test  of  party  allegiance,  such  as  the  decla- 
ration of  allegiance  exacted  in  California  and  Minne- 
sota, or  the  pledge  of  support  to  the  candidate  selected 
required  under  the  law  of  Louisiana  and  Texas.  In 
other  states  the  authorities  of  the  party  itself  are  al- 
lowed by  law  to  prescribe  the  test  of  membership. 

Thus  far  we  have  spoken  of  the  primary  only  as  an 
instrument  for  the  selection  of  party  candidates  for 
the  local  area  and  party  delegates  for  the  superior 
conventions.   But  the  reform  of  the  primary  system 


348     THE  STRUCTURE  OF  THE  GOVERNMENT 


has  brought  not  only  the  "  legalization  "  of  primary  vot- 
ing as  described  above,  but  a  further  change  in  th* 
function  of  the  primary  itself.  This  new  feature  is 
embodied  in  what  is  called  the  direct  primary  or  direct 
nomination.  Tlie  general  aim  of  the  plan  is  to  elimin- 
ate the  convention  altogether  and  cause  all  recognized 
party  candidates  to  be  selected  by  a  vote  of  the  people 
gathered  in  the  primary  groups.  Uuder  this  method 
prospective  candidates  for  office  may  announce  their 
aunes  to  the  public  in  any  way  which  they  see  fit  to 
mae  or  their  names  may  be  unofficially  placed  before 
the  public  by  any  gproup  of  supporters.  Hence  the 
names  of  any  number  of  aspirants  for  the  position  of 
candidate  of  a  recc^nized  party  may  be  unofficially 
announced.  When  the  direct  primary,  or  direct  nom- 
ination, is  held  each  citizen  votes  for  one  of  these 
nauie«,  «r  for  any  other  name  which  he  writes  in  on 
his  ballot,  as  his  choice  for  the  candidate  of  one  or 
other  political  party.  The  persons  receiving  the  highest 
number  of  votes  in  eaeh  party  become  the  recognized 
candidates  and,  presumably,  the  supporters  of  the 
beaten  nominees  will  transfer  their  votes  to  them  on 
the  day  of  election.  In  this  way  the  primary  meetings 
ean  nominate  candidates  for  various  state  offices  with- 
out an  intermediary  convention.  They  can  nominate 
candidates  for  United  States  senatorships  on  whose 
names  the  two  or  more  parties  in  the  legislature  will 
vote.  Finally  they  can,  and  they  do,  indicate  their 
preference  for  this  or  that  aspirant  for  the  position  of 
party  candidate  in  the  presidential  election. 

The  system  of  direct  nominatioa  has  made  enormous 
progress.   In  1912  state  officers  were  dir«ctly  nomio- 


PARTY  GOVERNMENT 


349 


ated  in  36  states,  members  of  the  House  of  Represent- 
atives in  39,  and  United  States  senators  in  34  states. 
In  eight  states  th«  law  provided  for  the  selection  of 
delegates  to  ull  national  conventions  by  direct  nomin- 
ation. The  system  has  called  forth  unlimited  enthus- 
iasm and  become  the  subject  of  extreme  laudation. 
Its  advocates  see  in  it  the  end  of  machine  politics,  of 
ready-made  conventions,  and  of  the  rule  of  a  self -chosen 
clique  of  bosses  and  party  managers.  It  is  more  than 
possible,  however,  that  the  advantages  of  direct  nom- 
ination are  overrated.  After  all,  the  orgaaizatiou  and 
the  machinery  set  on  foot  by  the  political  managers 
can  move  one  stage  back,  and,  in  the  indifference  of 
the  general  voter,  preface  the  direct  nomination  itself 
by  a  preliminary  and  machine-nade  choice.  Unless 
direct  nomination  can  bring  with  it  a  more  active  pub- 
lic spirit  and  more  general  participation  in  civic  con- 
cerns, it  will  go  the  way  of  the  machinery  which  it 
displaces.  Here  as  elsewhere  the  forms  of  government 
are  of  no  avail  without  the  spirit.  Moreover,  serious 
critics  of  direct  nomination  are  already  calling  atten- 
tion to  the  fact  that  it  tends  to  shut  out  deliberation 
and  the  opportunity  for  collective  discussion  afforded, 
ideally  at  least,  by  a  party  convention. 

6.  Party  Machinery  in  Qreat  Britain.  In  the 
United  Kin^'dom  party  machinery  is  not  found  in  the 
same  highly  organized  state  as  in  the  United  States. 
This  has  been  due  to  the  fact  that  it  is  not  so  necessary. 
The  cabinet  system,  as  has  been  seen,  puts  executive  and 
legislative  power  into  the  same  hands.  In  America  the 
party  organization  forms  the  connection  by  which  the 
two  legally  distinct  branches  of  the  government  are 


360    THE  STRUCTURE  OF  THE  GOVERNMENT 

brought  into  harmony.   This  function  therefore  is  not 
needed  in  England.   Add   to  this  the  fact   that  the 
English  parliamentary  elections  are  much  less  numer- 
ous than  the  various  elections  for  federal  and  state 
offices  in  the  United  States.    Nevertheless  the  use  of 
regular  party  machinery  is  growing  in  Great  Britain  ; 
though  long  regarded  by  many  English  people  with  dis- 
favor  as  an  American  importation,  its  obvious  utility 
for  election   purposes  has  ensured  its  adoption.'    At 
the  centre  of  English  party  structure  stand  two  great 
political   organizations,  —  the  National    Conservative 
Union  and  the  National  Liberal  Federation,  —  whose 
headquarters  are  in  London.    Of  these  bodies  affilia- 
tions are  formed  in  each  polling  district  of  a  parlia- 
mentary constituency,  made  up  of  the  active  adherents 
of  the  party  in  that  area.  This  is  the  germ  cell  of  party 
structure,  corresponding  to  the  American  primary.    It 
elects  representatives  to  a  party  council  of  the  whole 
constituency,  and  from  these  constituency  councils  re- 
presentatives are  sent  to  form  a  council  for  the  whole 
county  or  borough.   Finally   this  last  council  elects 
representatives  to  the  central  body  at   London.    The 
party  leaders  in  Parliament  naturally  exercise  a  con- 
trolling   influence,    somewhat    as    the    congressional 
caucus  of  the  early  nineteenth  century  aspired  to  do. 
The  caucus  broke  down  because  under  the  American 
federal  system  the  national  congress  is  not  the  sole 
and  supreme  organ  of  national  political  life.     But  the 

*  Few  works  on  British  goTemment  contun  any  reference  to  party 
orfranization.  President  Lowell's  masterly  work,  The  Govirnment  of 
England  (1908),  contains  an  admirable  discussion  of  the  topic,  part  ii. 
Sea  also  Ostrogorski,  Democracy  and  the  Organizationof  Political  Portia, 
and  Mr.  Winston  Churchill's  Lord  Randolph  Churdiill,  esp.  ch.  vii. 


PARTY  GOVERNMENT  381 

different  situation  in  which  the  British  Parliament  is 
placed  naturally  puts  the  party  leaders  in  a  position 
to  exercise  a  radiating  control  over  all  the  constitueD- 
cies.    The  affiliated  branches  of  the  organizations  men- 
tioned act  as  the  means  of  giving  definite  direction  to 
this  control.    With  the  gradual  evolnti(m  of  the  "  party 
convention"  the  system  of  party  "platforms"  is  l)egin. 
ning  to  appear.     Authoritative  "  ojHjn  letters  "  or  ad- 
dresses of  the  great  party  leaders  and  resolutions  passed 
by  the  councils,  constituencies,  etc.,  are  of  this  charac- 
ter. Candidates  are  still  selected  in  somewhat  irregular 
and  varying  fashion,  accentuated  by  the  fact  that  resi- 
dence in  the  constituencies  is  not  needed  as  a  qualifi- 
cation.   The  custom  of  reelecting  the  same  person  again 
and  again  obviates  the  necessity  of  making  a  selection. 
If  a  new  choice  must  be  made,  it  is  done  either  by  the 
constituency  council,  or  if  they  cannot  agree,  the  central 
council  at  their  suggestion  proposes  a  likely  candidate 
to  them,  or  even  indicates  two  or  three  from  whom 
they  may  select. 

T  The  Party  Groups  of  Continental  Europe. 
On  the  continent  of  Europe  party  governance  presents 
certain  features  differing  markedly  from  the  situation 
hitherto  existing  in  America  and  Great  Britain.  In- 
stead  of  two  great  political  parties  overshadowing  all 
others,  and  alternating  in  the  control  of  the  govern- 
ment, we  find  in  France,  Germany,  and  Italy  a  consid- 
erable number  of  party  groups,  no  one  of  which  is 
strong  enough  to  outnumber  all  the  others.  In  France 
and  Italy,  this  is  a  particularly  disturbing  element  in 
public  life,  since  the  administration  of  those  countries 
is  based  on  the  cabinet  system,  rendering  the  executive 


Ml 


/ 


363    THE  STRUCTURE  OF  THE  GOVERNMENT 

government  dependent  on  the  continued  iupport  of  a 
majority  in  the  lower  house  of  the  legislature.   Under 
the  group  system  of  party  life,  no  one  party  is  able  to 
afford  that  support.   It  must  therefore  be  obtained  by 
means  of  a  coalition  of  separate  parties  whose  mutual 
support  is  given  purely  for  reasons  of  expediency,  and 
may  be  withdrawn  at  any  time  in  favor  of  a  more  pro- 
fitable combination.   It  is  to  this  fact  that  is  due  the 
notorious   instability  of   French  ministries  under  the 
Third  Republic.   There  exist  in  France  four  chief  party 
groups,  with  many  subdivisions  and  combinations.  The 
chief  lines  of  political  cleavage  are  marked  out  by  the 
terms.  Conservative,  Republican,  Radical,  and  Socialist. 
The  Conservatives  include  the  remnants  of  the  older 
monarchical  parties,  once  divided  into  Imperialists,  Or- 
leanists,  and  Legitimists,  but  now  representing  rather 
the  opposition  to  advanced  democracy  than  the  hope  of 
a  monarchical  revolution.  The  recently  formed  group 
of  Nationalists  is  a  reconstruction  of  conservative  ele- 
ments.  The  Republicans  have  stood  first  and  foremost 
for  the  maintenance  of  the  Third  Republic  as  estab- 
lished, without  aiming  at  the  advanced  social  reforms  de- 
manded by  the  Radicals.  The  Socialists  differ  from  the 
latter  m  wi  ,hing  to  break  entirely  with  individualism 
and  found  a  cooperative  commonwealth.   French  Social- 
ists have  been  much  divided  both  as  adherents  of  rival 
leaders  and  as  exponents  of  rival  doctrines,  —  munici- 
palism  versus  the  central  state,  opportunism  versus  no- 
compromise,  etc.   No  one  of  these  parties  has  ever  been 
strong  enough  to  maintain  a  ministry  by  its  support. 
Hence  all  the  ministries  (but  one\  from  the  beginning 
of  the  true  republican  era  under  President  Gr6vy  until 


PARTY  GOVEUXMLXr 


353 


1905,  have  been  formed  with  Republicant>  as  the  nu- 
cleus and  with  fortuitous  support.    The  Bourgeois  luin- 
istry  (1895-96)  was  chiefly  radical  and  the  ministries 
from  1905  till  1912  were  based  on  a  combination  of 
radicals  and  socialists.    The  instability  which  naturally 
resulted  has  been  aggravated  by  the  methods  of  French 
legislative  proce<lure,  it  being  customary  for  the  cabinet 
to  resign  even  if  defeated  on  matters  of  minor  moment, 
or  in  consequence  of  an  "  interpellation  "  '  in  the  Cham- 
ber of  Deputies.   Even   the   members  of  the  cabinet 
itself  are  less  interested  in  its  continuance  than  is  the 
case  in  England,  since  they  may  very  possibly  them- 
selves form  part  of  the  reconstructed  cabinet  which 
supplants  it.    The  relation  of  political  parties  to  cabi- 
net  government  thus  stands  upon  quite  a  different  foot- 
ing in  France  from  what  it  does  in  the  United  King- 
dom.    Indeed  the  commendation  which  it  has  so  largely 
met  in  the  latter  country  rests  on  the  presumption  of 
the  existence  of  two  great  parties  as  a  sort  of  natural 
phenomenon  likely  to  continue.   The  absence  of  such 
in  France  upsets  the  whole  calculation.   In  Italy  and 
in  the  German  empire,  there  is  the  same  subdivision 
of  party  groups.    The  elections  to  the  German  Reichs- 
tag of  January,  1912,  showed  at  least  a  dozen  different 
parties.    The   Reichstag  contains  397  ..  i.tDbv-^rs,  but 
even  the  most  numerous  of  the  p;i:ti'!s,  tho  ^ccialists, 
had  only  a  hundred  and  ten  seats.    Ecverai  cf  i*je  par- 
ties (anti-Semites,  Guelphs,  etc.)  had  less  tharj  a  dozen. 
The  subdivision  of  parties  is,  however,  of  mr.c'.    hu3 

1  The  "interpellation"  differs  from  the  "qnestioi;,  raiBed  in  <;iei 
British  parliament  in  that  a  debate  on  the  point  raised  is  mUow*  'I  allec 
the  interpellation,  but  not  after  a  question. 


/ 


351    THE  8TRUCTUBE  OF  THE  GOVERNMENT 

natirual  consequence  in  Germany  than  in  France,  since 
parliamentary  governmt'nf  does  not  exist. 

Looking  at  the  inHtitution  of  party  government  gen- 
erally, it  seems  Vuble  to  one  or  the  other  of  two  grave 
dangers.    If  bisection  of  opinion  on  a  paramount  issue 
does  not  exist,  then  the  consolidation  of  the  party  may 
become  a  purely  mechanical  affair.   What  was  in  its 
origin  a  natural  bond  of  union  may  degenerate  into 
the  cohesion  created   by  artificial  party  ties.    On  the 
other  hand,  wlvere  such  cohesion,  natural  or  artificial, 
18  not  forthcoming,  parties  assume  the  fraguientary  and 
unmanageable  form  seen  on  the  continent  of  Europe.  In 
Great  Britain,  where  the  operation  of  the  constitution 
in  its  present  shape  is  dependent  on  party  government, 
the  situation  of  public  affairs  at  the  opening  of  this 
century  is  at  a  very  interesting  juncture.   Within  the 
last  two  decades  the  older  line  of  cleavage  has  been 
intersected  in  all  directions  with  new  divisions.     The 
adoption  of  the  Home  Rule  policy  by  Mr.  Gladstone 
(1886)  divided  the  Liberals  into  Unionists  and  Home- 
Rulers.   The  adhesion  of  the  former  to  the  Conserva- 
tives partially  healed  the  breach  thus  created.     But 
with  the  close  of  the  century  the  division  into  Imperi- 
alists and  anti-Imperialists,  Prottjctionists  and  Free- 
Traders,  and  other  minor  rifts  of  opinion  has  violently 
disturbed  the  formation  of  parties.    The  emergence  of 
the  parliamentary  Labor  Party  as  a  powerful  factor  in 
the  twentieth  century  further  disturbs  the  situation.  It 
remains  to  be  seen  whether  the  British  political  parties 
wiU  disintegrate  into  groups,  will  adopt  a  formal  system 
of  union  with  pledges  and  platforms  on  the  American 
plan,  or  will  find  some  means  of  reverting  to  their 


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Gl 


•■  Prop«>HeiI  laws  appropriatini;  revenue  or  moiiny^  or  ini|M)^tnt;  taxation  Mhall  not 
,<»rii;inat4*  in  the  Senate.  The  Senate  uiay  not  iimen<i  pro|MiH«H|  I.ihh  lmpo-.inK  taxa- 
tion or  pro|H)Hetl  laun  appropriatim;  revenue  i»r  money h  tor  th<-  onltuary  annual 
[services  .tf  the  uoTennnent."  Couiinonwealtb  of  Anntralia,  Comttitutmn  A<t, 
■I'.tiMi.  §  .\l. 

I"  Finance  bills  nui-t  fint  l)e  preHente«|  to  the  Chamlier  ot  l>epi.tieii  and  votwl  Ity 
jthem."     Loi  Constitutionelle. 'J4  Feb.,  1x7."),  $  H. 


|l'4>4tr<lin&te  iMmern.  *' Iniiterial  legislation  in  etteete*!  by  the  linnilenratb  and  the 
iKeicbntaK.  The  coniient  of  the  majority  vote  of  )H>th  boUM'it  is  nete^-v.iry  and  is 
^adeqttate  for  an  ini|»Tial  law."     Constitution,  ai  t  ■'■. 


I.ife  Ifeei-* 
(indefinite) 

named bytlie  ertt  fn)m  the 
Kiuff.  repre-  IVovincial 
MMitativeH  of  Nobility 
univerHitien. 
mayors  of  ci- 
ties of  [copu- 
lation     over 

.Ml.lMNt 


s.        Kiecte<f  "  Finance  tiills  nhall  be  mibtnitted  Hrst  to  the  TbamlHT  of   Hfputies;   they  shall 
UvT^ndown-UH*  accepted  or  refniied  in  their  entirety  by  the  Houne  of  Lortts."    Comititntion, 


im 


,"  I.AWS  in  reference  t»  the  taxen  and  the  public 
to  the  ContfreHH.'*     CimHtitntion,  I^T*".,  §  4'J. 


cre*lit  must  \n-  fir-t   premiited 


a74      i 

44   Upt»oint- 
etl  Ity  can- 
tons) 


0  "  The  consent  of  both  bonnes  and  the  couHent  of  the  em|»eror  is  neceiuuiry  for 

every  law.  If  in  a  tinaiice  law  in  rt^^rd  to  particular  items,  or  in  a  law  for  ntiain^ 
recruitR  in  regard  to  the  number  of  the  coiitint;ent  to  l»e  rain*  <l.  in  despite  at  re- 

Iieated  conniderntinii  no  aifreenient  can  Is*  reached  by  t)ie  two  hoiiseH.  then  the 
ovver  HUin  proiHMed  sh.ill  t>e  consiiliTed  aM  adopted."  Fundamental  Law  of  'Jt 
IhH-.y  1st;:,  §  l.l. 

'.i     delet^tes  Coordinate.  -—  Cui»t4»ni  aud  Law  uf  lH8o,  j  Kt. 

from  r'roatia 
and  I"  elwt- 
edbytbpl'p- 
|)er  House 

i  "  Kvery  law  for  imp.j«inK  taxes  nr  for  Hanrtionine  the  Imlances  or  aeefnintu  of  the 

;state  shall  be  presenteil  ftrnt  to  the  Chamber  of  Deputies.**     Statu> ' ,  art.  10. 


(onrdinale  jMiWers.       4'onHtitutional  Act  ^^ir 

"  Federal  laws  can  only  l»e  panaed  with  the  consent  of  l>otb  honm  « 


»  rhamlKT*  :  a  few  itf  Du-  np|><.intrtl  tnimlMTs  *.tiU  reiimui, 

ne  cuiikihlinx  <if  (li  niembvrii  chosen  by  the  Au^trmu  pHrliument,  and  one  of  a  hkt  number  chown  by  thr  llunifanan  psrtiantent 


Tlit-y  Hit  and  debate 


a 


PARTY  GOVERNMENT 


3&la 


earlier  condition  of  "  natural "  opposition  on  a  funda- 
mental question. 

READINGS  SUGGESTED 
Ostrogorski,  M.,  Democracy  and  the  Organization  of  Political 

Parties  (1002),  vol.  i,  chap,  viii,  and  vol.  ii  (especially)  part 

ii.     See  also  Mr.  Bryce's  preface. 
Bodley,  J.,  France,  vol.  ii,  bk.  iii,  chap.  t. 
Godkin,  E.  L.,  Unforeseen  Tendencies  of  Demoenoy  (1896), 

Essay  No.  3,  The  Nominating  System. 
De  Tocqueville,  A.,  Democracy  in  America  (183S),  ehsp.  z 

(Parties  in  the  United  States). 
Lowell,  A.  L.,  The  Government  of  England,  part  iL 


FURTHER  AUTHORITIES 
Hopkins,  J.  H.,  History  of  Political  Parties  in  the  United  States 

(1900). 
Macy,  J.,  Political  Parties  in  the  United  States,  1846-61  (1900). 
McKee,  T.  H.,  National  Convention  and  Platforms,  4th  edition 

(1901). 
Lowell,  A.  L.,  Governments  and  Parties  in  Continental  Europe 

(1897). 
Ford,  H.  J.,  Rise  and  Growth  of  American  Politics  (1898). 
Bryce,  J.,  American  Commonwealth  (1889). 
Macdonagh,  M.,  The  Book  of  Pariijiment  (1897). 
Carr-Gomm,  F.  C,  Handbook  of  the  Administrations  of  Great 

Britain  (revised  edition,  1901). 
Hazell's  Annual  (yearly). 

Lecky,  W.  E.  H.,  Democracy  and  Liberty  (1896). 
Maine,  Sir  H.,  Popular  Government  (1886). 
'joodnow,  F.  J.,  Politics  and  Admiuistrattun  (1900). 
Young,  Sir  F.,  Exit  Party  (1900). 
May,  Sir  T.  E.  (Baron  Farnborough),  Constitutional  History  of 

England,  vol.  ii  (especially  chap.  viii). 


ii 


PART  HI 
THE  PROVINCE  OF  GOVERNMENT 


ii 


ill 

m 


^\  I 


/ 


CHAPTER  I 


INDIVIDUALISM 

1.  Tlie  Indiridnaliatio  Theory  of  the  Functions  of  OoTeniment.  —  2. 
Individualism  as  based  on  a  Theory  of  Justice.  —  ',i.  liased  on  a 
Theory  of  Profitability  j  the  Doctrine  of  Laissez  Faire.  —  4.  Based 
on  a  liiological  Analog;  the  Survival  of  the  Fittest. — 5.  Con- 
flicting Forces. 

1.  The  IndividnaliBtic  Theory  of  the  Fanctioiui 
of  Oovenunent.  lu  the  first  and  second  divisions  of 
the  present  volume  we  have  considered  the  general  na- 
ture of  the  state,  and  the  constitution  and  structure  of 
governmental  bodies.  The  discussion  of  the  form  of 
government  has  of  necessity  preceded  the  treatment 
of  the  proper  sphere  of  its  operation.  Yet  in  our  own 
time  the  latter  topic  in  practice  assumes  the  place  of 
paramount  importance.  The  general  opinion  of  civil- 
ized countries  recognizes  the  validity  of  the  principles 
of  popular  sovereigi.ty  and  democratic  government, — 
whether  expressed  by  means  of  a  limited  monarchy  or 
in  a  republican  form.'  It  is  generally  admitted  also  that 
the  adoption  of  popular  government  does  not,  in  and 
of  itself,  as  the  sanguine  theorists  of  a  hundred  years 

'  In  stating  that  the  general  consensus  of  opinion  is  in  favor  of 
democracy,  it  is  not  to  be  denied  that  popular  government  has  found 
occasional  detractors  among  writers  of  reputation  and  ability.  Sir 
Henry  Maine  (Popular  Government,  1S86)  declares  it  to  be  "  extremely 
fragile,"  "  not  in  harmony  with  the  normal  forces  ruling  human 
nature,"  and  "  apt  therefore  to  lead  to  cruel  disappoiounent  or  scriuus 
disaster." 


it 

!  4 


I 


/ 


"1 


338  THE   PROVINCE  OF  (iOVEUNMENT 

ago  hoped  it  might,  offer  a  solution  of  all  our  political 
and  economic  problems.    Even  granting  that  the  gov- 
ernment is  to  he  controlled  hy  the  people  and  for  the 
jKJople,  we  have  yet  to  ask  what  is  to  he  the  piopcr 
Bphero  of  its  operation  for  the  general  l)enefit.    We 
employ  ii>  ordinary  discourse  a  variety  of  phrases  to  in- 
dicate the  subject  in  «p>estion,  speaking  indifferent?y  of 
the  sphere  of  the  state,  state  control,  the  functions  of 
government,  the  province  of  government,  etc.  More  spe- 
cial aspects  of  the  problem  are  seen  in  connection  with 
government  ownership  of  railways,  the  control  of  trusts, 
and  the  management  of  jjublic  utilities.    But  whether 
in  its  gei  ;ral  theoretical  aspect  or  in  particular  form, 
the  problem  involved  is  emphatically  the  paramount 
question   of   the  opening   of    the  twentieth    century. 
In  the  following  three  chapters  we  i  '.lall  endeavor  lo 
deal  with  it  in  systematic  form,  considering  one  after 
another  the  solutions  that  have  been  offered  in  theory 
and  practice  to  the  open  question  of  government  con- 
trol.  First  we  shall  deal  with  the  individualistic  solu- 
tion, or  system  of  natural  liberty,  to  which  we  havi 
already  referred  in  a  somewhat  different  connectK  .  in 
a  preceding  chapter.     In   the  second  place  we  shall 
discuss  the  iueals  of  collectivism,  and   the  attempts 
that  have  been  made  for  its  partial  realization.    The 
discussion  of  the  actual  economic  ojjerations  of  mod- 
ern states  on  what  may  be  called  an  individualistic 
basis  moditied   to  a  great   extent  by  utilitarian   and 
opportunistic  considerations,  will  be  considered  in  con- 
clusion. 

To  the  treatment  of  the  individualistic  doctrine  of 
the  functions  of  government  belongs  of  right  the  pre- 


INDIVIDUALISM  300 

cedencc.    For  it  conHtitutciI  (1iirin<{  a  larjje  part  of 
modern  tiinPH  what  might  be  called  the  oftitial  creed 
of  enli<>htened  governiuenta  :  was,  until  our  own  2;«'nera- 
H  tion,  defended  by  the  greatest  theorists  of  the  inodern 

era,  and  .-dthong  :  diser^dited  in  its  extrcinc  form,  re- 
mains as  the  working  basis  of  the  eeonomic  o|M>ration 
of  both  the  American  and  the  British  governments. 
The  individualistic  theory  may  be  briefly  stated  in  the 
proposition  that  the  sole  duty  of  government  is  to 
protect  the  individual  from  violence  or  fraud.  Accord- 
ing to  this  theory  the  jmsitive  interference  of  the  state 
with  the  individual  even  in  his  own  interest  is  not  justi- 
fied. Nor  is  the  state  justified  in  undertaking  opera- 
tions of  an  economic  character,  or  in  imposing;  restric- 
tions (other  than  in  prevention  of  violence  or  fraud)  on 
the  economic  activities  of  its  citizens.  A  sehedide  of 
government  functions  adminsible  on  a  purely  individu- 
alistic plan  would  include  the  maintenance  of  an  army 
and  a  navy,  courts  of  justice  and  a  force  of  police,  the 
enforcement  of  a  crinunal  law  and  of  statutes  in  ref- 
erence to  sanitation,  adulteration  of  food,  inspection 
of  steamboats,  etc.,  these  being  indirectly  protective  in 
their  cb^acter;  but  it  could  not  eonprise  the  con- 
duct ot  post-office,  the  maintenance  of  hospitals  and 
])oor-houses,  or  the  operation  of  railroads.  Only  such 
actions  on  the  part  of  the  state  as  were  directei'  to  pre- 
vent the  interference  of  its  citizens  with  one  another 
would  be  legitimate. 

2.  Individualism  as  based  on  a  Theory  of 
Justice.  T'  *s  system  of  individual  liberty  against 
the  interfersnce  of  government  has  been  defended  on 
different  grounds,     is  a  matter  of  justice  it  has  been 


i    H 


r: 


300  THE  PROVINXE  OF  GOVERNMENT 

argued  that  the  individual  has  a  right  to  be  let  nlone. 
On  economic  grounds  it  has  been  contended  that  it 
pays  to  let   him  alone.    LsiHtly,  on  purely  Hcientifio 
grounds,  it  has  l)een  argued  that  it  is  in  general  conso- 
nance with  the  evolutionary  nature  of  human  progress 
that   the  in«lividual  should  struggle  for  himself  and 
survive,  or  fail,  according  to  hirt  fitness.    The  first  of 
these  argunionts  — the  nstriction  of  the  ojwration  of 
government  to  the  defense  of  the  rights  of  the  indi- 
vidual—  is  esiiecially  found  iu  the  writings  of  the 
political  philosophers  of  the  later  eighteenth  and  early 
nineteenth  centuries.*    We  find  it  in   the  theory  of 
the  state  advanced  by  Kant  and  Fichte  and  following 
as  a  corollary  upon  their  view  of  the  doctri  le  of  the 
social  contract.   Kant,  actuated  by  a  sp'.'t  of  protest 
against  the  paternal  interference  of  the  Continental 
governments  of  his  day,  and  their  intrusion  into  the 
private  life  of  the  citizen,  bases  his  views  of  govern- 
mental functions  on  the  idea  of  liberty,  and  assigns  to 
the  state  "the  hindering  of  the  hindering  of  liberty" 
as  its  proper  policy.^   But  among  German  writers  Wil- 
helm  von  Humboldt,  in  his  "  Spliere  and  Duties  of  Gov- 
ernment," offers  the  most  complete  expression  of  the 
thoroughgoing  politicl  individualism  characteristic  of 
this  period.   Taking  as  his  starting-point  the  "  individ- 
iial  man  and  the  highest  ends  of  liis  existence,"  Hum- 
boldt finds  the  paramount  consideration  to  be  that  of 
indi^idu.      ariety  and  self-development.    On  this  the 

»  An  excellent  critique  of  the  individnaliBm  of  the  eig^hteenth  cen- 
tury, and  its  transmigsion  to  the  nineteenth,  ia  found  in  Michel,  ridie 

de  I'Elat  (introdnction  and  bk.  iii). 
"  :See  above,  bk.  i,  cliap.  v. 


INDIVIDLALI.SM 


.161 


aotive  interference  of  govemii  cnt  can  have  none  but 
a  detrimental  effect.  Fur  this  reason  "  the  state  is  to 
abstain  from  all  solicitude  for  ])ositive  welfare,  and 
not  to  proceed  a  step  further  than  is  necessary  for 
mutual  security  and  protection  *"  mi  foreign  fueniics." 
Even  such  examples  of  interference  as  nutional  ediifu* 
lion  and  btnto  relief  of  the  ])oor  are  to  be  condemned. 
This  political  theory  of  non-interferenee  received  a 
decided  stimulus  from  its  false  analogy  with  the  doc- 
trine of  popular  sovereignty.  It  was  but  natural  that 
at  the  begini'<ng  of  modern  democratic  government 
the  idea  of  tit',  right  of  the  nation  to  govern  itself 
should  be  confounded  with  the  somewhat  similar  claim 
uf  the  individual  to  be  left  alone  to  man<ige  his  own 
affairs.  Political  freedom  and  non-interference  seemed 
synonymous  terms.  In  America  the  idea  of  individual 
rights  was  dominant  during  the  formative  iieriod  of 
the  republic.  The  original  situation  of  the  colonists, 
compelled  to  wring  their  sustenance  from  a  reluctant 
wilderness,  ',he  discredit  of  government  ir  ceneral  »y 
the  land  fees,  tpiit  rents,  and  tea  taxes  the  royal 
regime,  inspired  the  Americans  witii  an  ii  -aso  belief 
in  self-reliance  and  individual  rir'r.s.  We  find  it  as 
the  central  feature  of  the  political  p.  ^iosopiiy  of  Tliomas 
Jefferson,  and  the  writer  "f  the  jMinoil,'  and  it  has  per- 
sisted until  to-day  in  the  opinions  held  by  a  large 
section  of  the  people  of  the  United  States. 

The  individualistic  theory  of  governmental  non- 
interference resting  on  a  doctrine  of  individual  rights 
has  an  attractive  and  undoubtedly  plausible  appear- 
ance.    Its  weak  point  lies  in  the  fact  that  on  closer 

*  See  C.  K  il«ni»m,  Uistory  of  American  PolUical  Thtories. 


i  i    s 

I  i 


I 


It 


362 


THE  PROVINCE  OF  GOVERNMENT 


examination  it  is  seen  to  contain  inconsistencies  of  a 
serious  character.  To  carry  it  out  fully  and  absolutely 
would  involve  the  adoption  of  an  attitude  at  variance 
with  the  dictates  of  common  sense,  and  one  which  no 
government  has  ever  found  it  practical  to  completely 
accept.  Mill  has  shown  that  the  limitation  of  the 
province  of  government  to  the  prevention  of  force  and 
fraud  "  excludes  some  of  the  most  indispensable  and 
unanimously  recognized  of  the  duties  of  government."  * 
Every  government  recognizes  and  enforces  the  right 
of  private  property,  but  it  can  be  objected  that  this, 
in  the  case  at  any  rate  of  property  in  land,  looks  very 
much  like  positive  interference,  since  the  maintenance 
of  the  claim  of  one  individual  is  equivalent  to  the  ex- 
clusion of  all  others.  In  the  case  of  the  regulation  of 
the  right  of  bequest,  the  fact  of  interference,  though 
universally  approved,  is  still  more  evident.  In  matters 
such  as  the  coining  of  money,  and  the  conduct  of  the 
postal  service,  we  have  instances  of  governmental  action 
in  a  positive  direction  of  such  obvious  convenience 
and  general  utility  as  entirely  to  warrant  the  violation 
•of  individual  liberty  involved.  In  other  cases,  as  has 
been  shown  in  detail  by  Professor  Sidgwick,^  there  is 
an  obvious  breach  of  public  morality  in  a  policy  of 
complete  abstention ;  that  a  government  should  leave 
deserted  children  to  starve,  and  content  itself  with  "  not 
interfering  "  with  the  destitute  poor,  is  a  point  of  view 
that  meets  with  almost  universal  condemnation.  The 
positive  duties  of  the  state  in  regard  to  national  edu- 

>  John  Stuart  Mill,  Principles  of  Political  T^zonomy,  bk.  v,  chaps,  i 
and  zi. 

*  Henry  Sidgwick,  Principles  of  Political  Economy,  bk.  iii,  chap.  iL 


1    I 


INDIVIDUALISM 


363 


cation  are  also  generally  admitted,  although  it  is  hard 
to  find  a  defense  for  such  a  function  of  government  on 
a  purely  individualistic  plan. 

a  Based  on  a  Theory  of  Profitability ;  the  Doc- 
trine of  Laissez  Faire.  The  view  that  social  justice 
demands  that  the  individual  should  be  left  in  possesssion 
of  his  "  natusal  rights  "  may  therefore  be  discarded. 
Far  more  importance  has  attached  to  the  economic  de- 
fense of  individualism,  the  claim  that  it  is  more  profit- 
able for  the  welfare  of  industry  and  commerce  that 
every  one  should  be  left  to  follow  his  own  interest  as  he 
himself  understands  it.  This  is  the  doctrine  that  was 
paramount  in  England  during  the  rise  of  modern  in- 
dustrialism and  which  was  to  a  large  extent  reflected 
in  America  and  elsewhere.  The  cause  of  the  peculiar 
dominance  of  individualism  in  the  direction  of  eco- 
nomic policy  is  to  be  found  partly  in  the  industrial 
circumstances  of  the  time,  partly  in  the  effect  exercised 
upon  public  opinion  by  the  writings  of  the  political 
economists.  During  the  period  between  1750  and 
1850,  England,  and  in  consequence  the  industrial 
world,  underwent  a  series  of  economic  changes  of  such 
fundamental  importance  as  to  earn  tlie  name  of  the 
Industrial  Revolution.'  The  inventiim  of  special  ma- 
chinery for  the  textile  industries  (the  spinning  jenny, 
the  mule,  the  power  loom,  the  cotton  gin),  together 
with  the  application  of  steam  as  a  motive  power, 
changed  the  system  of  production  from  its  previously 
restricted  and  domestic  character  and  established  the 


t 


*  The  stadent  may  with  profit  consalt  in  this  connection  Toynbee'l 
Industrial  Hevolution,  Cunningham's  Growth  of  English  Industry  and 
Commerce,  and  Hobiott's  Evolution  of  Modern  Capitalism. 


m 


II 


864  THE  PROVINCE  OF  GOVERNMENT 

factory  system.  The  contemporary  improvements  in 
the  smelting  of  iron  ore  (coal  being  used  as  fuel), 
the  improved  means  of  transportation  in  the  shape 
of  better  roads,  canals,  and  later  the  introduction  oi 
steamboats  (1807),  the  building  of  railroads  (1830) 
enormously  increased  productive  power  and  stimu- 
lated international  exchange  of  products.  At  the 
same  time  the  existing  system  of  government  regu- 
lation of  industry  (the  tolls,  duties,  prohibitions, 
labor  statutes,  etc.)  became  entirely  out  of  harmony 
with  the  industrial  situation  and  with  the  need  for 
mobility  of  capital  and  labor  and  opportunity  to  ex- 
ploit foreign  commerce. 

The  inadequacy  and  to  a  great  extent  the  positive 
hindrance  of  the  older  system  of  state  interference 
became  apparent  and  contributed  directly  to  the  rise 
of  modern  political  economy.     Adam   Smith   in   his 
"Wealth  of  Nations  "  (1776),  followed  by  Ricardo,  Mal- 
thos,  Frederic  Bastiat  and  others,  elaborated  the  eco- 
nomic system  of  individual  liberty  as  the  new  guide  of 
legislative  policy.   The  fundamental  argument  of  their 
system  runs  as  follows :    Every  man  is  actuated  in  his 
economic  relations  mainly  by  the  pursuit  of  his  own 
interest.   If  individuals  are  left  free  to  follow  their 
own  choice  in  the  use  of  their  capital,  the  sale  of 
their  labor,  or  the  renting  of  their  property,  the  liberty 
of  each  will  be  in  the  general  interest  of  all.    For  capi- 
tal and  labor  will  by  this  means  be  directed  to  those 
operations  in  which  they  are  most  profitably  employed, 
and  in  which  the  remuneration  for  them  is  in  conse- 
quence the  highest.     A  similar  reasoning  applies  to 
prices ;  for  if  articles  are  freely  exchanged,  an  increased 


INDIVIDUALISM 


3Cr> 


demand  for  any  commodity  will  tend  to  raise  the  price 
and  to  call  forth  an  additional  supply,  until  by  the 
operation  of  these  balanced  forces  an  e(|uilibrium  is 
obtained.  International  exchange  of  goods,  if  left  un- 
restricted,  will  be  effected  in  the  quantity  and  kind 
most  profitable  to  those  making  the  exchange :  every 
country  will  prefer  to  direct  its  labor  towards  the  pro- 
duction of  those  articles  for  which  it  has  the  great- 
est  adaptability  and  will  rely  on  its  trade  with  other 
nations  to  supply  the  commodities  whose  production  it 
finds  relatively  difficult.  We  have  thus  a  general 
economic  harmony  in  which  every  individual  seeks 
to  «obtain  the  greatest  advantage  for  himself  to  the 
general  wellbeing  of  all.  In  such  a  state  of  things 
government  interference  becomes  needless  and  necessa- 
rily noxious.  To  fix  prices  and  wages  by  legislative  act, 
to  assign  a  legal  rate  of  interest  and  prescribe  a  legal 
schedule  of  rent,  to  prohibit  importation  or  hamper  the 
movement  of  lal)or  from  trade  to  trade  or  from  place 
to  place,  —  all  this  is  contrary  to  a  natural  law  which 
if  left  to  itself  will  coordinate  everything  to  the  best 
advantage. 

The  effect  of  this  teaching  throughout  the  world, 
but  especially  in  Great  Britain,  was  momentous.  It  led 
to  the  repeal  (1813-14)  of  the  long-standing  regulation 
of  labor  under  the  Elizabethan  statute.  It  occasion'  I 
the  abrogation  of  the  laws  against  free  combination  of 
workingmen  (1824)  and  of  the  laws  of  settlement  re- 
stricting the  movement  of  laborers,  the  repeal  of  the 
navigation  code  (1849)  which  since  the  reign  of 
Charles  II  had  sought  to  limit  the  trade  witli  British 
colonies  to  the  ships  of  the  mother  country,  and  the 


I  r 


366  TIIE  PROVINCE  OF  GOVERNMENT 

abolition  of  the  trade  monopoly  of  the  East  India  Com- 
pany. It  found  its  greatest  triumph  in  the  abnost  total 
repeal  of  the  protective  duties,  the  abolition  of  the 
corn  laws  (184G),  and  the  establishment  in  the  United 
Kingdom  of  the  system  of  free  trade.'    In  America, 
though  the  absence  of  positive  interference  in  the  p:tst 
prevented  the  necessity  of  similar  statutes  of  repeal, 
the  same  ideas  exercised  an  enormous  influence.    The 
writings  of  earlier  American  economists  reflect  with 
what  General  Walker  has  called  a  "  Chinese  fidelity  " 
the  ideas  of  the  English  school;   and  the  low-tariff 
movement  before  the  war  was  based  on  the  doctrine 
of  free  trade.     In  a  succeeding  chapter  we  shall  have 
occasion  to  refer  to  the  later  criticism  of  natural  lib- 
erty. 

4.  Based  on  a  Biological  Analogy:  the  Sur- 
vival of  the  Fittest   The  evolutionary  basis  of   the 
individualistic  theory  of  governmental  functions  has 
not  enjoyed  the  same  prominence  as  the  economic  doc- 
trine.  We  see  it  especially  in  the  political  philosophy 
of  Herbert  Spencer.   As  we  have  already  noticed  in 
connection  with  the  organic  theory  of  society,  Spencer 
endeavors  to  apply  the  biological  theory  of  evolution 
to  the  interpretation  of  social  and  industrial  progress. 
The  government  is  regarded  as  one  of  the  "  organs "'  of 
society.   It  should  be  intrusted  only  with  that  function 
for  which  it  is  specially  adapted ;  and  with  the  ad- 
vance of  social  complexity  it  must  lose  in  scope  what 
it  gains  in  intensity.   "  A  function  to  each  organ,  and 
each  organ  to  its  own  function,"  says  Spencer,  "  is  the 

law  of  all  organization The  lungs  cannot  digest,  the 

I  A. 'Mongredien,  History  of  the  Free  Trade  MocemerU. 


INDIVIDUALISM 


367 


heart  cannot  respire,  the  stomach  cannot  propel  hlood. 
.  .  .  Must  we  not  expect  that  with  government  also, 
special  adaptation  to  one  end  implies  nonadaptation  to 
other  ends  ?  "  Spencer,  in  his  earlier  writings  at  any 
rate,  was  willing  to  {ollow  his  theory  to  its  logical  out- 
come, and  to  erect  the  dogma  of  "  the  survival  of  the 
fittest "  into  a  moral  law.  To  interfere  with  its  opera- 
tion was  to  disturb  the  "  natural "  order  of  progress. 
Should  the  state  aid  the  poor,  the  sick,  and  the  aged, 
it  thereby  contributes  to  the  survival  of  forms  which 
have  no  claim  to  survive,  and  whose  existence  is  a  det- 
riment to  life  in  general.  ''  It  seems  hard,"  he  says, 
"  that  a  laborer  incapacitated  by  sickness  from  com- 
peting with  his  stronger  fellows  should  have  to  bear 
the  resulting  privations.  It  seems  hard  that  widows 
and  orphans  should  be  left  to  struggle  for  life  or  death. 
Nevertheless  when  regarded  not  separately,  but  in 
connection  with  the  interests  of  universal  humanity, 
these  harsh  fatalities  are  seen  to  be  full  of  beneficence." 
The  theory  thus  advanced  is  interesting  as  illustrating 
the  extreme  form  which  individualism  was  apt  to  as- 
sume during  the  period  of  its  dominance,  but  hardly 
needs  a  detailed  refutation.  Such  an  argument  would 
apply  equally  well  to  the  suppression  of  private  charity, 
private  aid  to  the  sick,  and  private  maintenance  of  the 
poor  as  well  as  to  government  relief.  If  the  sole  test 
of  fitness  to  survive  is  found  in  the  fact  of  survival, 
then  the  prosperous  burglar  becomes  an  object  of  com- 
mendation, and  the  starving  artisan  a  target  of  con- 
tempt. If  it  is  assumed  that  widows  will  die  unless  the 
government  helps  them,  and  that  usurers  will  grow 
rich  unless  the  government  stops  them,  this  seems  a 


S68  TIIE  PROVINCE  OF  GOVERNMENT 

very  poor  reason  for  saying  that  widows  ovght  to  die 
and  that  usurers  ought  to  grow  rich.  Even  taking  the 
evolutionary  argument  on  its  own  ground,  it  ca..  be 
urged  with  justice  that  as  soon  as  the  governme'.t  does 
"  interfere,"  then  its  interference  becomes  one  of  the 
facts  of  the  situation,  one  of  the  operative  forces  to  be 
taken  into  account.  Indeed  the  attempt  to  thus  apply 
the  biological  doctrine  of  evolution  to  the  theory  of  the 
functions  of  government  involves  a  distortion  of  the 
truly  scientific  point  of  view. 

5.  Conflicting  Forces.    Even  in  the  first  half  of  the 
nineteenth  century,  when  the  individualistic  view  of  gov- 
ernment was  dominant  in  both  theory  and  practice,  its 
doctrines  were  not  altogether  unopposed.   The  wonder- 
ful  progress  made  in  productive  industry  by  the  fac- 
tory system  operating  under  a  regime  of  natural  liberty 
seemed  the  strongest  possible  argument  in  its  favor.  As 
against  this  the  appalling  distress  of  the  working  classes 
during  the  same  period  plainly  called  for  a  more  active 
policy  on  the  part  of  the  state  than  mere  non-interven- 
tion. The  factory  system  under  the  play  of  free  contract 
seemed  inevitably  to  lead  to  oppressive  hours  of  labor,  un- 
wholesome and  brutalizing  conditions  of  work,  and  the 
employment  of  children  of  immature  age  as  a  substi- 
vite  for  adult  labor.*   The  degradation  and  insufficient 
remuneration  of  the  workers  as  a  consequence  of  their 
enjoyment  of  "natural  liberty"  called  forth  a  strong 
current  of  opinion  in  opposition  to  the  policy  of  non- 
interference.  Thomas  Carlyle  in  his  "  Past  and  Present " 

1  An  acconnt  of  the  miseries  occasioned  by  the  factory  system 
may  be  fouad  in  Spencer  Walpole's  History  of  England,  yol.  iii,  chap, 
xiii. 


INDIVIDUALISM 


3G0 


(1843)  and"LatterDayPamphlets"(1856)»  denounced 
the  '^lUsnial  science"  of  the  ecunomists  and  ridiculed  the 
doctrine  of  laissez  Julre.  The  practical  effect  of  this 
humanitarian  niuvcnient  is  seen  in  tiie  legislative  regu- 
lation of  factory  labor  in  Great  Britain  by  acts  of  Par- 
liament of  1833,  1844,  1847,  1850,  and  later  statutes. 
These  measures  which  limit  the  hours  of  employment 
for  women  and  children  are  flatly  at  variance  with  the 
individualistic  principle.  They  have  however  been  sub- 
sequently imitated  in  the  legislation  of  the  great  indus- 
trial states,  including  most  of  the  manufacturing  states 
of  the  American  Union.  The  further  disintegration  of 
the  principle  of  non-interference  will  be  traced  in  the 
third  chapter.  From  what  has  been  said,  however,  it 
may  safely  be  concluded  that  pure  individualism  in  the 
conduct  of  government  is  impossible.  Its  adoption,  in 
complete  form,  runs  counter  to  the  most  instinctive 
impulse?  of  humanity  and  would  neglect  governmental 
duties  of  the  most  evident  character.  As  a  matter  of 
political  justice  it  rests  on  a  mechanical  attempt  to 
completely  divorce  individual  and  social  rights.  On  an 
economic  basis  it  overlooks  the  plain  advantages  of 
coi')peration  and  regulated  effort.  As  a  scientific  law 
it  will  not  stand  examination. 


READINGS  SUGGESTED 
Mill,  J.  S.,  Principlea  of  Political  Economy,  bk.  v,  chap.  xi. 
Ritchie,   D.  G.,   Studies   in  Political  and    Social  Ethics  (1902), 
chap.  iii. 

'  "  Let  us  hop©  that  the  leave-alone  principle  has  pot  its  apotheo- 
sis. . .  .  Respectable  Professors  of  the  dismal  science,  your  small  '  Law 
of  God'  is  hung  up  along  with  the  multiplication  table  iUielf  .  .  .  tlio 
length  of  your  tether  is  pretty  well  run."    Latter  Day  I'amphltts,  No.  L 


J  l! 


1 

1 

i 

'         i 

4 

s  u 

870  THE  PROVINCE  OF  GOVERNMENT 

M'Keohnie,  W.  S.,  The  SUte  and  the  Indifidu*!  (1896),  part  U, 
chapi.  xiv,  XV,  xvi,  xvii. 

FURTHER  AUTHORITIES 
Montague,  F.  C,  Limits  of  Individual  Liberty  (1885). 
Donisthorpe,  W.,  Individualitm  (1894). 
Kelly,  E.,  Government,  or  Human  Evolution  (1901). 
Michel,  H.,  L'Idrfe  de  I'Etat  (1895). 
Sidgwick,  H.,  Elementa  of  Politics  (2d  edition,  1897). 
Von  Humboldt,  W.,  Sphere  and  Duties  of  Government  (1791). 
Pollock,  Sir  F.,  History  of  the  Science  of  Politics  (1900). 
Godwin,  W.,  Political  Justice  (1798). 
Bluntschli,  J.  K.,  Geschiohte  der  Neueren  Staatswusenschaft. 

(3d  edition,  1881). 

Blanqui,  J.  A.,  HUtory  of  Political  Economy  in  Europe  (Ameri- 
can translation,  1880). 

Cunningham,  W.,  Growth  of  English  Industry  and  Commerce 
(1903),  vols,  ii  and  iii. 

Spencer,  H.,  The  Man  versus  the  State  (1884). 


/ 


fli 


CFIAPTER  II 


SOCIALISM 

1.  The  Socialiatic  Theory:  ill  Destructive  CriticUin.  —  2.  The  Con- 
stractive  Programme  of  Socialism.  — 15.  The  Uerman  Social  Demo- 
crats. —  4.  Socialiora  in  En(;land  and  America. 

1.  The  Socialistic  Theory:  its  Destructive 
Criticism.  Entirely  opposud  to  the  individualistic 
conception  of  government  are  the  doctrines  known  as 
socialism,  collectivism,  communism,  and  which,  subject 
to  later  distinction,  may  be  spoken  of  together  as  the 
socialistic  theory  of  the  state.  No  socialistic  state  has 
actually  existed  on  any  except  a  small  and  exi)erimental 
scale.  Socialism  is  therefore  nuiinly  an  ideal  rather 
than  an  actuality.  But  the  doctrines  it  embodies  have 
appealed  so  stnmgly  to  so  many  minds,  have  exercised 
such  an  important  influence  on  actual  legislation  and 
practical  politics,  and  contain  in  spite  of  their  falla- 
cious nature  so  much  that  is  of  use  and  inspiration,  as 
to  merit  a  special  treatment. 

Socialistic  theories  present  both  a  destructive  and  a 
constructive  aspect.  They  offer  in  the  first  place  a  criti- 
cism of  the  existing  industrial  system  (whose  basis  is 
individualistic),  with  a  view  to  show  its  inherent  un- 
soundness and  its  inevitable  collapse.  In  the  second 
place  they  propose  to  substitute  for  the  present  state 
a  cooperative  commonwealth  to  be  founded  on  associ- 
ated effort  and  joint  control.  The  critical  part  of  the 
socialistic  doctrine  is  intended  to  show  that  the  indi- 


I 


li 


/ 


I 

■i- 
i 

i ' 

1 
1 

979  THE  PROVINCE  OF  GOVERNMENT 

vidualistic  system  of  industry  is  wasteful  ami  ineffective 
from  an  economic  iwint  of  view,  and   ine«iuital)le  in 
that  the  remuneration  which  fallii  to  the  different  classes 
of  workers  is  not  according  to  tlieir  relative  deserts. 
The  more  celebrated  writers  of  the  »o1um)1,  as  for  in- 
stance the  great  German  socialist  Karl  Marx  in  his 
"Capital,"  which  has  been  called  tlie  gosiKjl  of  socialism, 
criticise  the  existing  state  from  a  point  of  view  elabo- 
rately hiatorical.    Mark  alleges  that  the  system  of  indi- 
vidual private  property  on  which  it  rests  is  the  outcome 
of  original  aggression  of  the  strong  against  the  weak, 
representing  an  appropriation  of  the  means  of  exist- 
ence by  the  stronger  class,  and  their  consetiuent  ex- 
ploitation of  the  mass  of  workmen,  who  remain  in  a 
state  of  dependence  spoken  of  as  wage  slavery.  The 
progressive  improvement  of  the  means  of  production 
renders  the  workmen  more  and  more  dependent  on 
those  who  employ  them.   The  appropriation  of  the  land 
by  private  owners  (a  process  pi^ctieally  complete  in 
older  countries)  renders  it  imi)Ossible  for  any  individ- 
ual to  apply  his  labor  directly  to  the  natural  resources 
of  the  earth.   The  increasing  use  of  machinery,  although 
vastly  more  efficient  than  the  hand  labor  which  it  has 
replaced,  makes  all  productive  operations  more  and 
more  dependent  on  the  possession  of  capital,  on  the 
ability  to  purchase  machines,  premises,  etc.,  and   to 
forego  the  prospect  of  immediate  reward  for  the  sake 
of  future  profit.    In  such  a  condition  of  things  the 
isolated  laborer  has  nothing  whereon  to  subsist  except 
his  labor  power,  which  he  must  sell  as  best  he  can  to 
the  h:        t  bidder.   In  the  nature  of  things  he  cannot 
receiv-  ^ess  for  it  than  what  will  enable  him  to  barely 


SOCIALISM 


S7S 


exint,  but  anything  over  and  above  this  will  depend  on 
the  bargain  he  in  ublu  to  make  with  his  eir'ploycr. 
Now  this  bargain;  altliough  nominally  viTected  under 
tliu  rule  of  free  contract,  is  in  reality  a  forced  one. 
The  witrkninn  ntust  sell  h\»  laltor  or  die  of  Mtarvation. 
Ibit  sine*;  the  increase  o>  |iopulation,  an  Maltlins  and 
(itliers  have  shown,  is  continuous  until  souie  point  where 
it  is  actually  checked  by  lack  of  means  of  subsistence, 
the  labor  market  will  always  be  so  crowded  witli  lal*or- 
ers  as  *o  bring  down  the  level  of  wiig»'s  to  that  which 
practically  amounts  to  the  necessaries  of  life.  Should 
wages  rise  above  this,  a  responsive  upward  movement 
of  population  must  bring  them  down  again.  Such  is 
the  famous  "  Iron  Law  of  Wages "  formulated  by 
La^saJle  on  the  basis  of  the  Rieardian  economics.  The 
other  side  of  the  industrial  bargain  is  represented  by 
what  the  employer  re  selves  from  the  laborer.  This 
consists  each  day  of  a  certain  amount  of  labor  power, 
which  results  in  the  fabrication  of  a  certain  number  of 
useful  commodities  produced  by  the  application  of  the 
day's  labor.  From  the  nature  of  the  bargain  it  does 
not  follow  that  the  commotlities  thus  produced  by  the 
workman's  labor  need  be  exactly  e«piivalent  to  the  com- 
modities given  to  him  through  the  medium  of  his  wages 
by  the  employer.  Indeed,  the  socialistic  writers  assure 
us  the  two  are  by  uo  means  equal.  The  workman  pro- 
duces in  the  day  more  than  he  consumes  (for  other- 
wise the  employer  would  have  no  motive  in  undertaking 
production),  and  the  suqdus  thus  created  falls  to  the 
lot  of  his  fortunate  employer.  The  laborer  who  sells 
his  labor  under  compulsion  is  compelled  to  submit  to 
this  fraudulent  system.   Such   is  the  doctrine  of  siur- 


i; 


374  THE  PROVINCE  OF  (iOVEHNMENT 

plus  Talue,  which  is  partictilarly  ausofiated  with  the 
name  of  Karl  Marx,  and  which  i«  the  foumlatiou  of 
the  critical  theory  of  swnaliHiH.  The  iMiiiit  in  which  it 
lieH  ojwn  to  attuik  in  that  it  attributcH  to  labor  the 
whole  oi  tlie  proilwtivu  rcHult,  aiul  does  not  allot  a 
share  to  the  machine  which  was  uned  in  coiii>eration 
and  which  \»  the  property  of  the  capitalist. 

It  is  imiKwsible  here  to  cuter  into  the  economic  dis- 
cussion  to  which  this  question  gives  occuhIou.   It  is  only 
intended  to  show  on  what  grounds  the  stwialistic  con- 
tention  accuses  the  present  system  of  being  essentially 
inetpiitable.   Marx  and  the  writers  who  have  followed 
his  lead  are  not  content  with  alleging  the  present  un- 
fairness  of  the  method  of  free  contract  and  free  com- 
petition.  They  claim  tlrnt  with  the  continued  application 
of  machinery  and  improvement  of  protluctiou,  the  con- 
tinned  appropriation  of  natural  resources  and  constant 
growth  of  population,  the  inequity  of  the  system  will 
be  emphasized,  the  gulf  between  the  capitalists  and 
the  laborers,  the  rich  and  the  poor  will  be  further  and 
further  increased.   Sooner  or  later,  they  maintain,  the 
forces  thus  at  work  will  precipitate  a  vast  social  catas- 
trophe which  can  only  be  avoided  by  altering  the  in- 
dustrial  basis  of  our  social  system,  and  substituting 
associated  effort  for  the  economic  anarchy  of  free  com- 
petition.   Their  theory  thus  assumes  the  aspect  of  a 
social  prophecy. 

On  more  valid  grounds  the  socialists  draw  attention 
to  the  wastefulness  of  the  individualistic  method  of  pro- 
duction and  distribution.  A  vast  amount  of  work  is 
performed  under  it  that  has  no  social  utility,  a  great 
deal  of  work  is  duplicated  and  even  done  several  times 


SOCIALISM 


375 


OT«r  with  no  general  advantage.  The  hibor  wasted  in 
cnmiKititive  advertining,  mid  uiTortM  of  u  siiuihtr  uh.-ir- 
Koter  int«>iitlcd  iii<>ri.'Iy  to  div<;rt  hiiMim-sH  from  oiiu  i>vr- 
■uii  to  another,  is  the  inn»«t  nnispifiious  iiistauct)  of 
cuoiioniit;  Iosh  of  thu  iirst  cIuhs.  liiHtnncuH  of  work  that 
is  needlessly  niiilti|)lii  1  arc  seen  in  the  euse  of  coin- 
poting  railroads  running  tiuins  over  paruliel  lines,  nnd 
in  retail  stores  existing  in  eonsiderahle  number  where 
one  gi'unral  distributing  establishment  eould  ilo  the 
work.  Perhaps  the  simplest  and  best  illustration  of  the 
point  in  question  is  seen  in  the  contrast  between  the 
delivery  of  letters  at  consecutive  houses  and  in  neigh- 
boring streets  by  a  postman  (an  oftiuial  under  collec- 
tive management)  and  the  waste  of  time  and  labor 
involved  by  the  spasmodic  delivery  of  milk  and  gro- 
ceries at  various  houses  throughout  un  extensive  dis- 
trict by  the  employees  under  individual  management. 
It  is  in  the  economic  saving  thus  effected  that  the 
amalgamation  of  industry  by  large  coritorations  proves 
economically  superior  to  production  and  distribution 
by  small  concerns.  The  large  industrial  companies 
and  departmental  stores  of  the  present  r..  standing 
jiroof  of  the  fact.  These  the  socialists  reganl  as  indi- 
cating tlie  necessary  passing  of  the  older  system  of 
individualism,  the  large  corporations  representing  a 
transition  stage  towards  the  general  industrial  man- 
agement by  the  state. 

2.  Th«  Conntructive  Programme  of  Socialism. 
From  what  has  been  said  it  will  be  easily  seen  that  the 
critical  or  destructive  side  of  socialistic  theory  contains 
a  great  deal  that  is  true  and  extremely  useful  in  indi- 
cating the  proper  direction  of  measures  of  social  reform. 


\m 


i 

.  _iiisa 

1 

,1 


376  THE  PROVINCE  OF  GOVERNMENT 

The  other  side  of  socialism,  its  constructive  programme 
for  a  cooperative  commonwealth,  is  much  weaker  and 
cannot  be  worked  out  in  detail  without  meeting  with 
hostile  criticism  from  socialists  themselves.    In  general 
terms  the  programme  of  socialism  is  t«)  substitute  gov- 
ernment management  for  private  management,  to  i)ut 
all  productive  industry  under  state  administration,  thus 
making  the  state  the  sole  employer,  and  jiutting  all 
the  workers  in  the  employ  of  the  state.  On  this  system 
the  functions  of  government  would  extend  to  the  whole 
domain  of  economic  operations ;  it  would  manage  all 
the  railroads,  the  factories,  the  mines,  and  the  farms. 
In  place  of  competing  retail  stores,  government  distrib- 
uting houses  would  be  established  for  delivering  to  each 
citizen  his  share  of  the  national  production.   Individ- 
uals would  still  have  a  property  right  to  the  things  they 
actually  intended  to  use,  —  houses,  food,  clothes,  etc.,— 
but  all  the  means  of  production  would  be  nationalized. 
The  inherent  impracticability  of  such  a  system  be 
comes  evident  when  one  turns  from  the  general  scheme 
of  production   to   the  question   of  distribution,  —  the 
method  according  to  which  the  wages  of  the  workers 
under  the  socialist  state  are  to  be  managed.     On  this 
point  there  is  a  great  variety  of  opinion.     The  most  ex- 
treme view  is  found  in  those  writers  who  recommend  that 
everything  produced  should  be  common  property,  all 
persons  taking  from  the  general  stock  according  to  their 
needs.    La  mise  an  tas,  la  prise  an  tas,  ran  the  for- 
mula adopted  by  Proudhon,  the  French  anarchistic 
writer.     Such  a  system  would  of  course  leave  no  such 
thing  as  individual  wages,  the  remuneration  of  each 
laborer  being  according  to  his  needs,  not  according  to 


SOCIALISM 


, 


srr 


his  efficiency.    Somewhat  similar  to  this  is  the  sugges- 
tion for  a  general  equality  of  wages,  all  persons  being 
compelled  to  work  for  an  equal  number  of  hours  (or 
a  number  of  hours  equalized  according  to  the  rela- 
tive  attractiveness  or  repulsivenesa  of  the  trade)  and 
all  receiving  the  same  remuneration.    This,  it  will  bo 
remembered,  is  the  solution  of  the  wages  problem  offered 
by  Edward  Bellamy  in  his  "  Looking  Backward,"  a  pre- 
sentation of  the   socialist  state  under  the  form  of  a 
romance,  which  attracted  at  the  time  of  its  publication 
(1888)  a  phenomenal  attention.     To  all  except   the 
most  sanguine  visionaries  any  socialistic   scheme   in- 
volving equality  of  wages  is  totally  impracticable.  It  is 
evident  that  under  such  an  arrangement  the  individual 
stimulus  to  work  would  be  gone  and  the  efficiency  of 
production  hopelessly  impaired  by  idleness.    Bellamy 
and  others  attempt  to  argue  that  under  the  improved 
conditions  brought  by  socialism,  the  elevation  of  the 
general  moral  tone  would  severely  discountenance  any 
such  shirking  of  work,  and  that  with  the  shortened  hours 
of  labor  possible  under  cooperative  work  there  would  be 
no  aversion  to  labor  on  the  part  of  the  individual.    Such 
an  argument  is  altogether  of  an  idealistic  character, 
and  contains  the  most  monstrous  assumptions  of  a  sud- 
den and  mechanical   renovation  of  human  nature,  so 
sweeping  as  to  beg  the  whole  question  of  social  reform. 
The  argument  is  also  in  contradiction  to  the  method 
(adopted  by  Bellamy)  of  lengthening  or  shortening  the 
hours  of  labor  in  any  trade  in  order  to  attract  or  repel 
workers  according  to  the  needs  of  any  particular  moment. 
This  plan  itself  rests  on  the  assumption  of  an  aversion 
to  work. 


m 


*-^^'' 


378  THE  PRUVINCE  OF  GOVERNMENT 

We  come  finally  to  the  scheme  of  industrial  organiz- 
ation that  may  be  described  as  socialism  proper,  in  op- 
position to  communism  and  collectivism.     In  this  case 
wages  are  to  be  awarded  to  each  laborer  according  to  his 
efficiency.     The  i.lan  supposes  a  hierarchy  of  officials 
(on  the  elective  principle)  who  control  the  productive 
process,  drafting  the  workers  from  trade  to  trade  as 
may  be  needed,  and  paying  salaries,  making  promotions, 
etc.,  according  to  the  industrial  efficiency  of  the  workers. 
The  pay  of  a  good  workman  would  be  high,  of  an  inef- 
ficient or  idle   workman  low.    The  scheme   would   be 
almost  perfect,  if  one  could  assume  the  official  per- 
sons who  assign  places,  salaries,  and  promotions  to  be 
omniscient  and  impeccable.     But  the  possibilities  c 
corruption,  the  play   of   interested  motives,  intrigue, 
personal  spite,  and  unfairness  of  all  kinds  would  be  so 
appalling  under  present  conditions  of  public  morality 
as   to  altogether  remove   such  suggestions  from  the 
domain  of  the  practicable.  If  all  industry  were  forcibly 
appropriated  by  the  government  and  private  business 
prohibited,  the  individual  who  fell  under  the  odium  of 
the  "bosses"  and  "cliques"  that  might  very  possibly 
control  such  a  government,  would  feel  himself  to  be 
under  a  despotism  from  which  the  organization  offered 

no  escape. 

3.  The  Oerman  Social.  Democrats.  Socialism, 
however,  has  more  than  a  merely  theoretical  aspect. 
On  the  continent  of  Europe  it  has  made  itself  a  force  in 
practical  politics  of  the  highest  importance,  and  social 
ist  political  parties  have  of  late  assumed  some  impor- 
tance in  England  and  the  United  States.  But  it  is  in 
Germany  especially  that  the  socialist  propaganda  baa 


■te 


SOCIALISM 


379 


met  with  success,  and  has  exercised  a  powerful  influence 
on  the  legislative  policy  of  the  government.  The  evo- 
lution of  socialism  in  Germany  is  not  only  interesting 
of  itself,  but  is  singularly  instructive  in  the  light  it 
throws  upon  the  probable  future  of  socialist  political 
parties,  and  the  extent  to  which  they  are  likely  to  suc- 
ceed in  modifying  the  attitude  of  existing  governments. 
It  arose,  as  also  in  France,  in  the  earlier  part  of  the  nine- 
teenth century,  assuming  at  first  an  altogether  ideal  and 
Utopian  form.'  The  earlier  socialists,  or  communists 
as  they  were  at  first  called,  greatly  underestimated  the 
enormous  difficulties  that  stand  in  the  path  of  social 
reform.  Attributing  all  existing  evil?  ^o  the  prevalence 
of  the  capitalistic  system,  they  presumed  that  its  imme- 
diate abolition  in  favor  of  state  control  would  effect  an 
almost  immediate  regeneration  of  mankind.  The  origi- 
nal programme  of  socialism,  when  it  arrived  at  the  stage 
of  having  a  political  programme,  consisted  in  the  un- 
compromising destruction  of  capitalistic  industry.  This 
was  th"  attitude  of  the  socialist  wing  of  the  revolution- 
ists that  for  the  time  being  overthrew  monarchical  gov- 
ernment in  France  in  1848,  and  threatemj  lis  existence 
in  the  German  convulsions  of  the  same  year.  After  the 
collapse  of  that  great  movement  the  German  socialists 
fell  into  opposing  groups,  —  some  of  them  still  aiming 
at  a  general  universal  revolution,  and  attempting  to  or- 
ganize on  a  cosmopolitan  basis,  others  recognizing  the 
l)re8ent  national  state  as  their  starting-point,  and  de- 
sirous of  gaining  their  ends  by  constitutional  reform. 

'  Of  the  initial  period  of  modern  socialism  in  Germany,  Weitlinjr's 
2>«e  Weit  wit  tie  ist  und  sein  soil  (ISJW)  and  in  France  the  writings  of 
St.  Simon  and  Fourier  may  be  cited  as  illuttrauve. 


i 
;- 


mm 


380  THE  PROVINCE  OF  GOVERNMENT 

By  the  latter  plan  socialism,  instead  of  fighting  itself 
into  power,  would  vote  itself  into  power.    The  greatest 
influence  during  this  period  was  exercised  by  Ferdi- 
nand Lassalle,  who  organized  a  German  Workingmen's 
Association,  and  advanced  as  an  immediate  programme 
the  use  of  state  credit  for  the  foundation  of  working- 
men's  productive  associations,  which  should  act  as  the 
beginning  of  a  socialist  state.     The  secession  of  the 
revolutionary  anarchists,  the  collapse  of  the  interna- 
tional  aspect  of  the  movement,'  aided   the   growing 
tendency  of  German  socialism  towards  a  national  con- 
stitutional form  whose  immediate  aim  should  be  the 
attainment  of  practical  measures,  rather  than  the  ecu 
plete  realization  of  the  ideal  state.     At  a  congress  at 
Gotha  in  1875,  a  general  union  of  the  socialist  party 
was  effected  on  a  basis  of  compromise.     In  the  pro- 
gramme there  'dopted  the  "abolition  of  the  system  of 
wage  labor"  was  indicated  as  the  ideal  of  socialism,  but 
certain  immediate  measures  were  proposed  "in  order  to 
prepare  the  way  for  the  solution  of  the  social  question." 
In  the  period  following  (1878-1890)  the  party  un- 
derwent a  severe  persecution  at  the  hands  of  the  Ger- 
man imperial  government,  which   did  not,  however, 
drive  it  into  revolutionary  measures.    At  a  congress 
held  at  Erfurt  (1891)  a  revised  platform  was  adopted, 
which  became  the  official  programme  of  the  German 
social  democratic  party.   It  demands  universal,  equal, 
and  direct  suffrage  by  ballot  (extending  the  franchise 

»  Karl  Mara  in  18r4.  while  a  refugee  in  London,  founded  the  Inter- 
national WoTkinRn,.n*8  A9so<.iation,  which  aimed  at  social  revolution 
without  the  help  of  existing  governmenta ;  the  raovement  collapsed 
after  the  Franco-Prussian  War. 


SOCIALISM 


381 


to  women),  proportional  representation,  direct  legisla- 
tion, substitution  of  a  universal  militia  for  a  stanilinjr 
army,  freedom  of  the  press  and  of  meeting,  free  justice, 
a  graduated  income  tax,  improved  factory  legislation, 
statutory  limitations  of  the  hours  of  labor.  With  these 
immediate  demands  are  coupled  a  general  denunciation 
of  the  evils  of  capitalistic  industry.  But  it  is  asserted 
that  the  "  struggle  of  tiie  working  classes  against  capi- 
talistic exploitation  must  of  necessity  bo  a  political 
struggle,"  '  and  it  will  be  seen  that  the  present  de- 
mands of  the  party  include  nothing  that  is  not  asked 
by  various  radical  groups  in  Anglo-Saxon  countries, 
except  perhaps  the  item  of  a  legal  labor  day.  On  this 
basis  the  progress  of  the  Social  Democrats  in  point  of 
numbers  has  bv^en  extremely  rapid.  At  the  foundation 
of  the  German  Empire  they  elected  only  two  members 
to  the  Reichstag ;  in  1893  they  elected  forty-four  mem- 
bers, representing  1,876,738  votes,  and  in  the  election 
of  1912  succeeded  in  returning  one  hundred  and  ten 
members,  representing  4,238,919  votes.  On  the  other 
hand  it  is  generally  conceded  that  the  socialist  party  (in- 
cluding therein  those  who  vote  for  socialist  candidates) 
is  not  entirely  made  up  of  socialists.  It  has  become  to  a 
large  extent  the  party  of  discontent  and  of  standing 
opposition  to  the  imperial  government,  and  is  by  no 
means  to  be  looked  upon  as  entirely  made  up  of  persons 
believing  in  the  practic«uility  of  a  cooperative  state. 

In  all  the  Continental  countries  one  of  the  vexed 
questions  of  present  socialism  is  the  extent  to  which 
the  earlier  doctrines  of  the  socialistic  theory  are  to  be 

*  A  translation  of  th-   t«xt  of  the  Erfurt  programme  may  be  found 
in  Ely's  Socialism  and  Social  Reform,  appendix  i. 


i^i  M 


w 


382  THE  PROVINCE  OF  GOVERNMENT 

maintained.   Some  of  the  socialists  tenaciously  adhere 
to  the  original  tenets  of  Karl  Marx,  and  persist  in  be- 
lieving in  the  imminence  of  the  social  cataclysm.   This, 
howe%*er,  in  view  of  the  evident  improvement  in  the  lot 
of  the  working  classes  during  the  nineteenth  century, 
during  which  the  actual  wages  of  skilled  labor  have 
been  about  doubled,  is  an  expectation  that  seems  be- 
lied.  A  great  many  socialists  believe  in  the  progressive 
alteration  of  present  conditions  will  a  view  to  immediate 
social  amelioration  to  the  extent  actually  practicable. 
These  "revisionists,"  as  they  are  called,  were  voted 
down  at  the  recent  international  congresses  of  social- 
ists, as  at  Amsterdam  (1904),  and  resolutions  adopted 
reaffirming  the  inveterate  hostility  of  the  socialists  to 
the  system  of  capitalistic  production.   But  in  spite  of 
this  it  may  with  authority  be  affirmed  that  the  greater 
number  of  socialists  now  favor  the  amelioration  ot  pre- 
sent conditions  rather  than  their  complete  overthrow. 
The  socialists,  though  extremely  numerous  in  France  and 
Italy,  have  nowhere  else  as  much  cohesion  and  unity 
of  operation  as  in  Germany.     In  France  in  particular 
they  are  dWided  into  opposing  factions.  Some  of  them, 
under  the  name  of  "  collectivists,"  are  of  the  Marxian 
type,  favoring  a  complete  economic  control  exercised 
by  a  centralized   government;    others   advocate   the 
adoption  of  a  socialistic  programme  by  the  develop- 
ment  of  municipal  control ;  others  again,  the  "  possi- 
bilists,"  are  inclined  to  accept  any  measures  of  ameli- 
oration that  can  be  obtained  nnd  to  cooperate  with  any 
existing  governments  that  will  meet  their  views. 

4.  Socialism  in  England  and  America.  Vari- 
ous socialistic  associations  have  been  formed  in  Eng- 


^ 


SOCIALISM 

land,  —  the  Social  Democratic  Federation  (1881),  the 
Socialist  League  (1884),  now  extinct,  and  the  Fubiuu 
Society.  The  latter  has  contained  among  its  members 
many  persons  of  marked  talent,  —  the  two  Webbs,'  Mrs. 
Annie  Besant,  and  others, —  and  the  collection  of  pa- 
pers published  by  it  under  the  title  of  "  Fabian  Essays 
in  Socialism "  has  had  an  extensive  sale.  The  pro- 
gramme of  the  society  consists  in  the  gradual  introduc- 
tion of  socialism,  recognizing  the  need  of  a  transitional 
stage  in  passing  from  capitalistic  industry  to  collective 
management.  In  the  United  States  there  have  been 
numerous  examples  of  practical  attempts  at  the  reali- 
zation of  collective  management  in  the  foundation  of 
various  communities  in  which  the  principle  of  associated 
labor  and  common  ownership  was  adopted.'  Of  these 
the  Rappites  of  New  Harmony  (later  of  Economy)  and 
the  communists  of  Zoar,  Amana,  and  Oneida  are  famil- 
iar examples.  These  experiments  have  always  proved 
failures,  except  where  the  main  motive  was  religious 
and  not  economic,  and  where  the  community  of  pro- 
perty was  only  incidental  to  aspirations  of  a  higher 
character.  Of  late  years  socialism  has  appeared  in 
the  United  States  in  the  form  of  political  parties 
which  are  developing  a  considerable  voting  power. 
The  Socialist  Labor  party  and  the  Social  Democratic 
partv  are  the  most  important.  In  the  presidential  elec- 
tions of  1912  some  919,000  votes  were  given  to  social- 
ist candidates.    But  in  the  case  of  both  these  parties. 


*  Sidney  and  Beatrice  Webb,  well  known  as  joint  authors  of  His- 
tory of  Trade-Unionism,  etc. 

^  Consult  in  this  connection  Charles  Nordhoff,  Tht  Communistic  So- 
cieties  of  the  United  Staffs. 


:  1 


h  - 


384  THE  PROVINCE  OF  GCVEIiTMENT 

though  they  preface  their  platforms  with  general  >tate- 
ments  in  favor  of  the  nationalization  of  production, 
special  stress  is  laid  on  the  immediate  demands  for  state 
railroads,  municipal  control  of  lighting  plants  and  street 
cars,  a  graduated  income  tax,  etc.   They  thus  illustrate 
in  their  practical  programme  a  very  close  similarity 
with  radical  political  parties  whose  basis  is  not  social* 
istic.  The  present  demands  of  socialist  parties  both  in 
America  and  in  Europe  are  very  closely  allied  to  those 
advanced  by  the  Populists,  the  French  Radicals,  and 
the  British   Independent  Labor  party.    The   funda- 
mental  basis  of  radicalism  is  individualistic  and  hence 
represents  in  theory  the  opposing  extreme  from  the 
socialistic  conception  of  the  state.   But  the  progressive 
evolution  of  modern  socialism  is  carrying  it  further  and 
further  from  its  original  ideal.  The  latter  many  social- 
ists admit  to  be  Utopian  and  unattainable,  aAd  many 
persons  not  socialists  would  concede  that  the  theoreti- 
cal ideal  of  a  cooperative  commonwealth  may  exercise 
a  formative  influence  on  the  direction  of  actual  legis- 
lation.   The  aims  of  the  socialists  in  connection  with 
municipal  government  we  shall  discuss   in  the  next 
chapter. 

READINGS  SUGGESTED 
Kirknp,  T.,  History  of  Socialism  (1892),  chaps,  i,  vii,  xii. 
Ely,  R.,  Socialism  and  Social  Reform,  part  i  (1894). 
Schafflo,  A.,  Quintessence  of  Socialism  (translation  of  8th  Ger- 
man edition,  1889). 

FURTHER  AUTHORITIES 
Bliss,  W.  D.  P.,  Handbook  of  Socialism. 
Rae,  J.,  Contemporary  Socialism  (2d  edition,  1891). 
Ely,  R.,  French  and  German  Socialism  (1883). 


SOCIALISM 


38S 


Bellamy,  E.,  Looking  Baekwud  (1890). 

Man,  K.,  Capital  (1867). 

Webb,  S.  and  B.,  History  of  Trade>Unioni*in. 

Nordhoff,  C,  Communiitic  Societies  of  the  United  States  (1878). 

Piihlmaun,  R.,  Geschichte  des  antiken  Kommunismus  und  Sosi> 

aliimus  (1803). 
SchafHe,  A.,  Impossibility  of  Social   Demoeraey.     (Authorised 

English  edition,  1892). 
Zenker,  £.  V.,  Anarchism  (1897). 


Si 


I 


CHAPTER  in 

THE  MODERN  STATE 

1.  Th*  New  Entironment. -2. Theory  of  ProtecUon  to  Indu.try.-a. 
Modern  Pwteotive Tariff..  -4.  Interference  with  Compet.nve  I  r.c... 
Trust  and  Railroad  Legislation.-"..  Government  Interference  on 
Behalf  of  the  Working  Cla«;  Factory  L»>«,  State  Inaurance.  «.d 
PenflioM.  —  tt.  Municii.  J  Control. 

1.  The  New  Environment  We  shaU  now  consider 
in  conclusion  the  actual  functions  exercised  by  modern 
governments  and  the  existing  state  of  opinion  in  refer- 
ence to  the  economic  duties  of  the  state.  The  practical 
operation  of  all  modern  civilized  governments  remains, 
in  a  certain  sense,  on  an  individualistic  basis.   By  this  is 
meant  that  there  is  no  state  in  which  the  principle  of 
common  property  in  the  means  of  production,  cr  of 
equality  of  wages,  or  of  universal  employment  by  the 
government,  is  adopted.    Each  individual  is  still  left 
to  earn  his  own  living  by  his  own  efforts,  and  the 
amount  of  wages  remains  as  a  matter  of  free  contract 
between  employers  and  employed.   But  subject  to  this 
general  reservation,  it  can  easily  be  shown  that  the 
practice  of  modern  governments  is  further  than  ever 
removed  from  complete  individualism,  and  that  the 
tendency  towards  state  interference  with  industry  is 
everywhere  on  the  increase.   We  have  but  to  consider 
the  public  policy  of  our  time  in  reference  to  the  regu- 
lation of  railroads,  of  monopolies  and  tariffs,  to  realize 
that  the  former  reliance  upon  the  principle  of  unre- 


THE  MODERN  STATE 


387 


ttricted  com|)etition  and  individual  self-interest  has 
been  completely  lost.  This  obvious  change  in  ])ublic 
policy  has  been  accompanied  by  an  etpially  evident 
change  in  public  opinion.  The  economists  and  political 
phihwcphers  of  the  present  time  are  ,.repared  to  defend 
a  degree  of  state  interference  quite  at  variance  with 
the  doctrines  of  their  predecessors.  The  reason  for  this 
remarkable  alteration  both  in  theory  and  practice  is 
found  in  the  altered  circumstances  of  our  industrial 
environment.  We  have  seen  in  a  previous  chapter 
that  the  rapid  expansion  of  industry  under  the  stimu- 
lus of  the  new  mechanical  processes  oi  the  industrial 
revolution  seems  to  demand  its  liberation  from  all 
forms  of  governmental  restraint,  and  that  the  conse- 
quent removal  of  the  standing  impediments  to  the  free 
movement  of  capital  and  labor  was  accon\panied,  at  any 
rate  as  far  as  the  total  volume  of  production  was  con- 
cerned, with  marked  success.  But  it  has  been  seen  also 
that  in  reference  to  the  welfare  of  the  laboring  class 
the  systen.  of  free  competition,  particularly  in  regard 
to  the  work  of  women  and  children,  was  open  to  serious 
objection.  The  further  development  of  modern  indus- 
try has  emphasized  many  other  disadvantages  attend- 
ant upon  unrestricted  competition.  The  more  import- 
ant of  these  may  be  briefly  discussed  in  theoretical 
form,  after  which  we  shall  prooecv!  to  the  treatment  of 
the  actual  legislative  policy  adopted  under  the  circum- 
tances. 

The  theory  of  government  functions  laid  down  by 
Smith,  Ricardo,  and  the  classical  economists  was 
essentially  a  cosmopolitan  theory.  It  was  intended  to 
show  that  if  wages,  prices,  and  trade  were  left  to  the 


1-: 


■■^ 


1; 
ill! 


THE  PROVINCE  OF  GOVERNMENT 

free  play  of  individual  bargaining,  the  wlf-interest  of 
each  would  promote  the  general  interest  of  all.   Each 
individual  would  be  enabled  to  apply  his  kbor  and  bis 
capital  to  the  particular  branch  of  induitry  in  which 
he  might  expect  the  highest  remuneration.  In  the  same 
way  each  nation  would  be  enabled  to  concentrate  its 
production  in  the  directions  for  which  it  had  the  great- 
est  natural  advantages,  an  unrestricted  trade  with  its 
fellow  nations  supplying  the  commodities  not  produced 
at  home.  As  applied  to  the  conditions  prevalent  in  Eng- 
land in  Ricardo's  day,  the  theory  of  international  rek- 
tions  is  generally  admitted  to  have  been  correct.  There 
could  be  no  doubt  as  to  England's  paramount  advan- 
tages  at  that  time  in  nearly  all  lines  of  manufacturing 
industry.     But  the  attempt  to  apply  the  free-trade 
theory  to  other  nations  and  to  later  times  has  by  no 
means  met  with  a  general  acceptance.  In  the  first  place 
it  is  objected  tliat  the  acceptance  of  the  policy  of  free 
trade  militates  against  national  self-sufficiency  and 
independence.     In   strict  accord  witi.  the   Ricardian 
doctrine  it  will  follow  that  if  a  nation  has  especial 
advantages  for  agriculture  and  relatively  poor  facili- 
ties for  manufacture  it  will,  apart  from  government 
interference  with  the  "  natural "  course  of  things,  rely 
upon  its  neighbors  for  manufactured  articles,  and  de- 
vote its  energies  mainly  to  agriculture.   Conversely  a 
nation  with  special  facilities  for  maniifacture,  but  poor 
in  agricultural  resources,  will  be  led  to  leave  its  land 
untitled  and  to  obtain  its  food-supply  by  exchanging 
its  manufactured  articles  for  agricultural  products.   It 
is  clear  that  in  these  cases  the  welfare  of  each  nation 
is  absolutely  dependent  on  its  being  able  to  carry  on 


THE  MODERN  STATE 

an  uninterrupted  trade  for  the  supply  of  its  particular 
needs.  Should  such  intercourse  be  interrupted  by  war, 
either  between  itself  ..id  the  nation  it  trades  with  or 
between  the  latter  and  an  outside  ]K>wer,  its  economic 
existence  ia  at  stake.  The  economic  gain  affo.dsd  by 
its  trade  in  time  of  peace  is  thus  offset  by  its  econoroio 
feebleness  in  time  of  war.  It  is  to  be  esi)ecially  ob- 
served that  it  is  not  only  a  war  of  its  own  that  it  must 
apprehend,  but  a  war  undertaken  by  an  outside  nation 
on  which  it  is  in  some  degree  economically  dependent. 
On  this  ground  it  is  argued  that  state  interference  in 
the  shape  of  protection  to  manufactures  (or  to  agrioul- 
ture)  is  justified  in  so  far  as  may  l>e  needed  for  estab* 
lishing  a  proper  quantity  of  economic  independence. 
Even  Adam  Smith  in  his  approval  of  the  navigation 
acts'  admits  the  validity  of  considerations  of  a  similar 
character,  and  the  argument  is  generally  admitted  by 
present  economists  to  be  of  weight.  There  is  a  con* 
siderable  divergence  of  opinion  as  to  the  extent  to 
which  economic  independence  should  be  attempted.  It 
is,  however,  universally  admitted  that  for  the  manufac- 
ture  of  the  munitions  of  war  no  state  should  permit 
itself  to  be  dependent  on  the  outside  world. 

2.  Theory  of  Protection  to  Industry.  The  fore- 
going is  only  one  of  the  many  grounds  on  which  state 
interference  in  the  fonn  of  protective  duties  has  been 
advocated.  More  familiar,  especially  in  America,  is  the 
line  of  reasoning  known  as  the  "  infant  industry"  argu- 
ment. It  is  claimed  tliat  the  resources  and  circum- 
stances of  a  country  may  be  such  that  while  the  initial 
expense  of  setting  a  manufacturing  system  on  foot  in 
1  Wealth  o/Natiotu,  bk.  W. 


FSi^ 


ii' 


390  THE  PROVINCE  OF  GOVERNMENT 

the  face  of  foreign  competition  offers  insuperable  diffi- 
culties for  the  industrial  producer,  yet  such  a  system 
once  properly  established  would   be  of  a  sufficiently 
profitable  character  to  compete  on  equal  terms  with  the 
imports  of  foreign  manufactures.  In  this  case,  it  is  urged, 
the  government  should  impose  a  temporary  duty  which 
may  make  it  possible  for  manufactures  to  be  estab- 
lished, and  which  may  later  on  be  removed.  The  tempo- 
rary help  thus  afforded  by  state  interference  will  enable 
the  community  to  advance  to  a  higher  stage  of  indus- 
trialism, and  better  to  exploit  the  natural  resources 
of  its  territory.   This  argument  has  met  with  especial 
support  from  American  economists.  The  weak  point  in 
connection  with  the  infant-industry  argument  is  that  in 
countries  where  duties  of  this  kind  have  been  adopted, 
the  industries  in  question  have  never  outgrown  their 
infancy,  as  far  as  the  protective  tariff  is  concerned.   In 
practice  the  duties  have  not  only  not  been  removed  but 
have  been  increased. 

A  further  ground  of  argument  in  favor  of  protec- 
tive  interference  arises  out  of  the  cosmopolitan  charac- 
ter of  the  free-trade  doctrine.  Assuming  a  complete  in- 
ternational regime  of  free  trade,  the  system  might  tend 
towards  the  denudation  and  impoverishment  of  the  less 
favored  nations  in  favor  of  those  possessing  the  great- 
est resources  and  offering  the  best  conditions  for  man- 
ufacture. The  Ricardian  theory  presupposes  that  each 
nation  will  occupy  itself  with  the  pursuits  for  which  its 
circumstances  are  best  suited.  It  is  admitted'  that  one 
nation  may  be  worse  suited  in  every  respect  than  an- 

1  See  John  Stuart  Mill,  Principles  of  Political  Economy,  bk.  iii,  chaps. 
ZTii,  xviiL 


THE  MODERN  STATE 


391 


other  and  yet  continue  to  trade  with  it,  because  the 
people  of  the  most  favored  nation  will  prefer  to  devote 
themselves  to  t!.  occupation  in  which  their  advantage 
is  greatest,  'lauh  let  n.-;  si.jpose  that  Portugal  can  pro- 
duce both  V  in-  ,'nd  corn  >■  ith  less  labor  than  Morocco; 
and  let  it  al;-  I)  •  fi;ppof^jd  that  in  the  production  of 
corn  the  advantage  is  but  slight,  whereas  in  the  case  of 
wine  the  advantage  is  enormous  ;  the  people  of  Portu- 
gal will  still  prefer  to  get  their  corn  from  Morocco,  al- 
though produced  there  at  greater  pains  than  in  Portu- 
gal, because  the  quantity  of  wine  they  exchange  for  it 
is  protluced  at  still  less  cost.  On  this  ground  the  classi- 
cal economists  undertook  to  show  that  two  nations 
misrht  trade  with  mutual  advantage  even  where  the  re- 
sources  of  the  one  were  superior  in  every  respect  to 
those  of  the  other.  Such  an  argument  however  takes  it 
for  granted  that  the  capital  and  labor  of  each  country 
will  remain  within  its  own  borders,  and  not  emigrate  to 
the  more  favored  territory.  Why  should  it  not  be  suj> 
posed  that  with  free  intercourse  and  open  markets,  the 
capital,  and  what  is  far  more  important,  the  laborers  of 
less  favored  communities  would  emigrate  to  places  bet- 
ter suited  for  manufacture?  It  will  l)e  noted  that  this 
supposed  denudation  of  poorer  countries  contains  no- 
thing at  variance  with  tlie  free-trade  theory  itself.  The 
emigration  of  persons  and  capital  under  these  circum- 
stances would  doubtless  increase  tlie  gross  total  of  tlie 
world's  production,  and  would  add  sometliing  to  the 
general  productive  efficiency  of  mankind.  But  it  would 
assuredly  not  increase  the  gross  total  of  the  product!  vo- 
ucss  of  the  country  out  of  which  they  emigrated.  TIio 
question  then  is,  whether  the  adoption  of  protective 


IM^ 


M 


392  THE  PROVINCE  OF  GOVERNMENT 

duties  in  aid  of  home  manufacture  can  prevent  the  de- 
sertion of  poorer  for  richer  countries.  It  may  be  argued 
that,  even  after  the  duties  are  imposed,  the  individual 
capitalist  or  laborer  will  still  find  it  more  profitable  to 
use  his  capital  and  labor  in  the  more  favored     nmtry, 
and  that  the  tendency  to  emigration  of  both  of  these 
is  independent  of  protective  interference.   There  are, 
however,  a  great  ni.ioy  people  in  every  country  whose 
remaining  there  is  not  altogether  a  matter  governed  by 
economic  motives  ;  some  will  remain  from  sentimental 
reasons  of  attachment  and  patriotism,  others  because 
their  material  fortunes  are  already  amply  sufficient. 
Under  a  protective  system  the  manufactured  commod- 
ities consumed  by  these  persons  must  needs  be  made 
at  home  and  necessitate  the  continuing  within  the  state 
of  a  sufficient  manufacturing  population  for  the  pur- 
pose.   Such  manufacture  will,  under  these  premises,  be 
conducted  at  an  economic  loss :  the  persons  of  means 
thus  residing  in  the  country  will  have  to  pay  more  for 
what  they  consume  than  if  content  to  import  it  from 
abroad  and  to  let  the  manufacturing  population  depart. 
But  the  upshot  will  be  that  a  larger  number  of  citizens 
remain  within   the  state  than  would  have  remained 
without  the  state  interference  in  the  form  of  protective 
duties.   It  is  plain,  of  course,  that  the  applicability  of 
such  an  argument  depends  on  the  particular  circum- 
stances of  any  country  at  any  time.   The  situation  of 
Great  Britain  at  the  present  time  naturally  suggests  it- 
self for  examination  in  this  connection.  It  may  conceiv- 
ably be  the  case  that  the  facilities  both  for  agriculture 
and  for  manufacture  are  now  inferior  in  Great  Britain 
to  those  of  the  United  States.    The  progressive  appli- 


THE  MODERN  STATE 


303 


cation  of  water  power  and  electricity  as  motive  forces 
may  further  emphasize  this  advaatage.  Under  such 
circumstances  according  to  the  Ricardian  doctrine  the 
laboring  people  of  England  ought,  each  consulting  his 
own  advantage,  to  come  to  live  in  the  United  States. 
There  would  remain  in  England  the  persons  of  means, 
who  would  invest  their  capital  in  the  manufacturing 
industries  of  America,  and  draw  from  that  continent 
the  various  commodities  of  their  consumption.  The 
case  is  purely  hypothetical  and  may  be  perfectly  at  vari- 
ance with  present  facts.  But  it  seems  to  show  that,  in 
pure  theory,  the  system  of  free  trade  is  not  of  necessity 
identical  with  national  greatness.  To  grant  this  and  to 
contend  that  it  is  always  consistent  with  the  general 
welfare  of  the  world,  even  where  fatal  to  the  welfare  of 
a  particular  nation  as  such,  would  be  thought  by  many 
a  quite  insufficient  argument. 

3.  Modern  Protective  Tariffs.  Acting  on  the 
general  conciderations  thus  stated,  almost  all  of  the 
modern  -ial  states  have  seen  fit  to  adopt  a  system 

of  protect,  .ties  for  the  promotion  of  domestic  man- 

ufacture. Such  legislation  in  the  United  States  was 
indeed  adopted  in  a  mild  form  at  the  very  opening 
of  the  history  of  the  prcont  Constitution.*  During  the 
first  half  of  the  nineteenth  century,  the  rival  theories 
of  free  trade  and  protection  struggled  for  mastery.  The 
high  tariff  of  1828,  the  "tariff  of  abominations,"  was 
followed  by  tl  greatly  reduced  tariff  of  184G,  a  meas- 
ure partly  due  to  the  influence  of  the  free-trade  cam- 
paign in  England,  and  by  the  reciprocity  treaty  with 

'  Se«  Schouler,  IlUtury  of  the  United  States,  vol.  i ;  Taussig,  Tariff 
Hiitorg  of  the  United  States. 


I    I 


394  THE  PROVINCE  OF  GOVERNMENT 

Canada  in  1854.   But  since  the  Civil  War  the  system  of 
protection  to  national  industries  has  been  strengthened, 
a:  d  extended  to  practically  the  whole  range  of  indus- 
try. The  Dingley  tariff  of  1897,  while  admitting  free 
of  duties  a  large  lumber  of  raw  materials  for  use  in 
manufacture,  impos*^d  on  manufactured  articles  duties 
amounting  in  some  cases  to  more  than  fifty  per  cent. 
The  Dominion  of  Canada,  though  granting  a  special 
rebate  of  one  third  of  the  duty  to  imports  from  Great 
Britain,  is  now  on  a  high-tariff  basis,  the  policy  of  pro- 
tection having  been  explicitly  adopted  by  the  Conserva- 
tive party  in  1878,  and  transmitted  to  their  opponents 
on  their  accession  to  power  in  189G.   The  German  Em- 
pire, since  the  tariff  of  1879,  has  also  adopted  the  policy 
of  protection,  the  recent  tariff  of  1902  having  further 
raised  the  existing  duties,  especially  those  on  agricul- 
tural products.'   France,  Italy,  and  the  other  Continen- 
tal    •  atries  are  also  under  a  system  of  tariff  protection. 
Of  the  manufacturing  countries  of  the  world,  Great 
Britain  alone  remains  upon  a  free-trade  basis,  while 
even  there  the  future  retention  of  such  a  system  has 
recently  become  a  subject  of  acute  controversy. 

4.  Interference  with  Competitive  Prices;  Trust 
and  Railroad  Legislation.  Interference  with  the  free- 
dom of  importation  is  only  one  instance  of  the  present 
tendency  towards  legislation  in  contravention  of  the 
formerly  dominant  theory  of  natural  liberty.  We  have 
already  seen  that  in  accordance  with  this  system  it  was 
considered  advisable  that  price?  ononld  be  left  alto- 
gether to  the  play  of  free  competition  among  buyers 
and  sellers.  It  was  presumed  that  under  a  regime  of 
*  See  W.  H.  DawMn,  Protection  in  Germany,  cbap.  ix. 


THE  MODERN  STATE 


305 


unrestricted  competition,  the  price  of  any  article  would 
be  in  proportion  to  the  cost  of  producing  it.  For  the 
attainment  of  the  maximum  economic  efficiency,  and 
for  the  satisfaction  of  the  demands  of  social  justice,  it 
seemed  necessary  merely  to  leave  people  alono  to  buy 
and  sell  as  they  pleased  at  such  prices  as  they  should 
arrange  between  themselves.  The  essence  of  the  posi- 
tion, however,  lay  in  the  assumption  khat  there  woidd 
be  active  competition  among  a  number  of  persons  pro- 
ducing the  same  article.  The  case  is  altered  if  we 
suppose  the  entire  stock  of  any  particular  commodity 
in  the  hands  of  a  single  seller,  or  what  is  the  same  thing, 
in  the  hands  of  a  group  of  sellers  acting  in  concert. 
Where  a  person  has  a  monopoly  of  the  available  stock 
of  a  commodity,  there  is  no  reason,  in  and  of  itself,  why 
he  should  sell  it  at  a  price  representing  the  cost  of 
production,  rather  than  at  any  other  pri(  e.  He  is  free 
to  ask  any  price  that  he  likes,  subject  always  to  the 
consideration  that  if  he  asks  too  high  a  price  no  one 
will  buy  the  article  he  wishes  to  sell.  When  we  come 
to  inquire  how  prices  will  in  such  a  case  be  settled,  we 
find  that  a  monopoly  price  follows  a  law  quite  different 
from  that  governing  prices  under  free  competition.' 
The  adjustment  of  a  monopoly  price  may  be  explained 
as  follows.  The  seller  obviously  cannot  sell  below  the 
cost  of  production,  because  that  would  entail  a  direct 
loss.  He  must,  therefore,  sell  at  a  price  somewhere 
above  the  cost  of  production.  But  it  is  clear  that  the 
lower  the  price  the  greater  will  be  the  number  of 
articles  that  he  sells.   The  whole  amount  of  his  profit 

^  For  the  law  of  monopoty  price,  see  R.  T.  "Ely,  Monopolies  and 
Tnutt. 


.  !, 


/ 


386  THE  PROVINCE  OF  GOVERNMENT 

will  depend,  therefore,  on  two  factors,  the  total  number 
of  sales  and  the  amount  of  profit  on  each  sale.  As 
the  price  rises  the  number  of  buyers  decreases,  though 
probably  not  in  a  regular  progression,  but  irregularly 
and  in  a  jolting  fashion.  There  will  be  found  pome- 
where  in  the  upward  scale  a  point  of  maximum  profit, 
at  which  the  product  of  the  number  of  sales  multiplied 
by  the  profit  on  each  is  greater  than  at  any  other  point. 
Now  this  point  may  in  some  cases  be  far  above  the  cost 
of  production :  for  example,  in  the  case  of  an  article 
of  prim«  necessity,  —  bread,  sugar,  oil,  etc.,  —  any  one 
having  a  complete  monopoly  of  the  available  stock 
could  exact  a  price  much  in  excess  of  the  actual  cost 
of  production. 

In  the  economic  situation  of  the  earlier  part  of  the 
nineteenth  century,  the  monopolization  of  articles  of 
ordinary  production  had  not  appeared  to  any  great 
extent.  The  law  of  price  applying  to  these  conditions, 
though  apprehended  by  the  economists  of  the  day,  as- 
sumed no  particular  importance,  nor  did  it  seem  to 
have  any  immediate  bearing  on  public  policy.  But  in 
our  own  day  the  possibility  of  monopolization  of  ordi- 
nary articles  of  production  has  become  a  significant 
factor  in  the  industrial  situation.  To  this,  various  causes 
have  contributed.  The  increasing  use  of  machinery  ren- 
ders the  initial  cost  of  embarking  on  any  industrial  pro- 
cess constantly  greater.  The  evolution  of  the  principle 
of  joint-stock  undertakings  has  rendered  it  possible  to 
carry  on  production  on  a  very  large  scale,  and  in  con- 
sequence to  considerably  reduce  the  cost  of  each  article 
produced.  This  has  rendered  it  very  difficult  for  small 
concerns  to  compete  with  large  industrial  corporations, 


THE  MODERN  STATE 


397 


and  has  set  up  in  the  industrial  world  a  tendency  to- 
wards the  amalgamation  of  similar  businesses  under  a 
common  management.    When  this  amalgamation  lias 
proceeded  far  enough  to  cover,  or  at  any  rate  to  dom! 
uate,  the  whole  production  of  a  certain  class  of  com- 
modities, then  the  principle  of  competitive  price-makii;g 
no  longer  applies,  and  the  law  of  monoply  price  comes 
into  play.     To  prevent  this  state  of  things  modern 
governments  have  seen  fit  in  some  instances  to  use  their 
legislative  power.   This  is  particularly  the  ca»c  with  the 
United  States,  where  the  process  of  industrial  amal- 
gamation has  been  most  rapid  and  has  occasioned  the 
greatest  public  apprehension.   The  federal  government 
in  1890  passed  an  anti-trust  law  (known  as  the  Sher- 
man Act)  forbidding  contracts  or  combinations  in  re- 
straint of  interstate  trade,  prohibiting  the  monopoliz- 
ing of  any  part  of  the  trade  between  the  states,  etc. 
About  half  of  the  states  have  legislated  against  the 
trusts,  either  by  constitutional  provisions  or  by  statutes. 
A  great  deal  of  „ach  legislation  has,  however,  been  de- 
clared invalid  by  the  courts,  or  rendered  inoperative 
by  various  kinds  of  evasion.' 

A  special  case  of  the  interference  of  the  modern 
state  in  regard  to  prices  is  seen  in  legislation  concern- 
ing railroad  rates,  which  are  of  course  prices  charged 
for  transportation  of  persons  and  freight.  A  little  ex- 
amination will  show  that  railroad  rates  differ  from 
most  other  prices  in  a  very  peculiar  way.  We  have 
seen  that  under  free  competition  in  the  production  of 
ordinary  commodities  their  selling  price  will  approxi- 

*  For  anti-trust  itatutes,  see  Eepmi  of  the  U.  S.  Industrial  Commis- 
$ion,  vol.  u.    See  also  Ernst  von  Halle,  Trutt$  (edition  of  1900). 


sr 


i 


!4Si, 


8gS  THE  PROVINCE  OF  GOVERNMENT 

mate  to  the  cost  of  production.   Even  where  a  single 
seller  has  a  monopoly  he  will  find  no  advantage  in 
making  sales  below  the  cos^  of  production.   But  in  the 
case  of  a  service  performed  by  a  railroad  in  transport- 
ing passengers  or  freight  over  a  certain  distance  the 
"  cost  of  production  "  is  of  a  quite  different  character, 
and  stands  in  a  quite  different  relation  to  the  price 
demanded.   In  the  first  place  we  can  see  that  there  is 
very  little,  almost  no  expense  incurred  by  the  railroad 
for  the  particular  transportation  of  any  single  article. 
Supposing  that  a  train  is  scheduled  to  run  between  two 
stations,  ten  miles  apart,  the  cost  of  sending  a  barrel  of 
flour  on  it  (the  additional  expense,  that  is,  actually  in- 
curred by  taking  that  particular  consignment)  consists 
merely  of  the  labor  of  two  or  three  minutes'  handling 
and  an  infinitesimal  quantity  of  extra  coal  by  reason  of 
the  extra  weight  added  to  the  train.   It  must  be  noted 
in  the  second  place  that  as  between  a  distance  of  ten 
miles  and  a  distance  of  one  hundred  miles  the  cost 
is  practically  the  same,  for  only  the  same  amount  of 
handling  is  needed,  and  the  other  expens*.  is  insignifi- 
cantly small.   There  is  of  course  the  expense  of  run- 
ning the  train  itself  (ooal,  wages,  etc.).  Very  obviously 
some  of  the  prices  charged  for  the  passengers  and 
freight  it  carries  must  make  this  good  or  the  train  is 
being  run  at  a  loss.   But  there  is  no  reason  (none,  that 
is,  of  an  economic  character,  and  apart  from  ideas 
of  sentiment,  justice,  etc.)  why  this  charge  should  be 
levied  in  a  proportionate  manner  upon  the  different 
consignments.   Suppose,  for  example,  that  the  state  of 
the  cotton  trade  is  such  that  consignments  ci  cotton 
will  be  sent  even  if  the  railroad  charges  a  high  price, 


THE   MODERN  STATE 


300 


and  that  the  market  for  flour  is  such  that  no  flour  will 
be  shipped  except  at  a  rate  excessively  low,  it  will 
clearly  be  to  the  advantage  of  the  railroad  to  charge 
iiiucli  fur  the  one  and  little  for  the  other.  In  other 
words  each  of  these  two  rates  will  be  of  the  nature  uf 
a  monopoly  pri(!e,  the  limitation  of  the  charge  being 
found  in  tliat  ubove  a  certain  point  the  number  of  con- 
nignments  ")egins  to  fall  off.  Over  and  above  tl>e  sj)e- 
cial  ex])en8es  of  running  this  individual  train  the  rail- 
road liaH  to  meet  its  permanent  and  standing  expenses 
in  the  sha|)e  of  the  interest  charge  upon  its  original 
construction,  and  the  cost  of  maintaining  the  roadbed 
and  terminals.  But  there  is  no  reason  to  assign  these 
charges  proportionately  and  uniformly  among  all  the 
trains  operated,  and  upon  all  the  business  handled. 
Each  train  an«l  each  consignment  must  of  course  repay 
the  direct  added  rost  -vhich  its  oj)cration  entails.  But 
above  the  extremely  low  minimum  rate  thus  indicated, 
it  is  always  worth  while  to  accept  business,  even  for 
a  small  charge  where  a  larger  cannot  be  had.  In  the 
practical  levy  of  railroad  rates  it  is  therefore  cpiite  out 
of  the  question  to  distribute  the  total  cost  in  a  propor- 
tionate man  nor.  Each  service  performed  will  be  sold 
at  a  price  renresenting  "  what  the  traffic  will  bear  " 
and  not  what  the  traffic  has  cost.  It  will  result  in  con- 
sequence that  the  different  charges  made  by  a  railroad 
may  be  evidently  and  visibly  out  of  propoition  to  their 
relative  cost.  It  may  happen  that  a  greater  charge  is 
made  for  carrying  a  particular  article  a  short  distance 
than  for  carrying  it  a  long  one.  Althou^jh  at  first  sight 
this  seems  contrary  to  common  sense  :ind  to  conuuon 
justice,  it  is  quite  in  keeping  with  the  principles  we 


I 


Mm. 


400  THE   FROVINCE  OF  GOVEKXMEN T 

have  just  laid  dow-n.   In  transporting  goods  between  two 
places  five  hundred  miles  apart  a  railroad  may  have  to 
encounter  the  opposition  of  competing  lines  or  of  trans- 
portation by  water,  and  may  be  compelled  to  accept  a 
very  low  rate  on  tlie  freight  it  carries.   But  at  the  same 
time  there  may  very  well  be,  included  in  this  five  hun- 
dred miles,  a  strij)  of  one  hundred  miles  which  is  not 
covered  by  any  competing  railroad,  and  which  has  not 
access  to  water  transportation.    As  between  tUe  towns 
on  this  strip  the  charges  that  the  "  traffic  will  bear  " 
are  very  likely  greater  than  the  utmost  charge  that  can 
l»e  levied  on  the  through  traffic  of  five  hundred  miles.' 
There  is  a  further  peculiarity  in  the  economic  situa- 
tion of  railroads  in  the  fact  that  active  and  permanent 
comi)etitiou  between  them  is  practically  imiwssible.   A 
state    *  keen  competition  induces  the  roads  to  reduce 
chuif.  .  -o  a  point  which,  while  covering  the  actual  and 
individual  cost  of  the  train  service,  nmkes  no  provision 
for  the  permanent  interest  and  maintenance  charges  of 
the  railway.   In  such  a  situation  a  poor  road  —  particu- 
larly one  whose  interest  chaiges  are  already  in  default, 
or  which  is  even  in  the  receiver's  hands  —  is  a  stronger 
competitor  than  a  good  one,  for  it  can  indulge  in  a 
more  reckless  and  suicidal  rate-cutting.    In   practice, 
therefore,  railroadii  have  always  found  themselves  com- 
pelled to  enter  into  agreements,  express  or  tacit,  as  to 
the  regulation  of  their  rates.    From  the  point  of  view 
of  the  general  public  such  understandings  look  very 
much  like  a  combined  attempt  ^^n  the  part  of  the  roads 
to  exploit  the  community  for  their  own  benefit. 

»  For  the  theory  of  railroad  rates  see  A.  T.  Hadley,  Railroad  Trans- 
portation. 


TIIK   MODERN   STATE 


401 


Th3  distinctive  position  which  the  railroads  thus 
occupy  in  the  industrial  world  has  induced  all  modern 
governments  to  subject  them  to  special  regidation,  and 
to  entirely  abandon  in  reference  to  them  the  ])rinciple 
of  non-interference.  In  some  cases,  as  in  I'russia,  Aus- 
tria,  Hungary,  the  states  of  the  Connnonwealth  of 
Australia,  etc.,  the  state  itself  owns  and  operates  tho 
railroads.  In  France  charters  are  granted  to  private 
companies  for  limited  })eri(Hls,  after  which  the  roads 
revert  to  the  state.  The  chief  railroad  systems  of  the 
country  (some  20,500  miles  of  road  out  of  a  total 
25,500)  will  become  nation.'d  property  between  tho 
years  1950  and  1960.  Even  wliile  the  roads  are  in 
]n-ivate  hands  their  general  relation  to  the  state  is  very 
different  from  that  of  ordinary  business  enterprises. 
A  large  part  of  the  original  i)ermanent  cost  was  de- 
frayed by  the  French  government ;  the  government 
also  guaranteed  the  payment  of  a  fixed  dividend.  In 
return  the  rates  are  fixed  by  th.e  government  itself,  and 
the  iransiMjrtation  of  the  mails,  troops,  prisoners,  etc., 
is  made  gratuitous.  In  the  United  States,  although  the 
railroads '  have  been  left  in  private  hands,  they  have 
been  the  object  of  special  legislative  control  of  both 
the  state  and  the  federal  governments.  The  Interstate 
Commerce  Act  (1887)  provitles  that  in  the  case  of 
charges  levied  on  commerce  between  the  states,  no  rail- 
road company  shall  unduly  discriminate  in  favor  of 
particular  persons  or  particular  localities.  The  same 
law  forbids  the  railroads  to  charge  more  for  transporta- 


'  A  fnU  acconnt  of  the  railroad  qnestion  in  the  United  States  ig 
found  in  Professor  Emory  Johnson's  American  Railway  TVaiuporfa- 
tion. 


402  TIIK   PKOVIXCE  OF  (lOVKKNMKXT 

tion  for  a  shorter  than  for  a  lonpjer  distance  over  the 
Batne  line,  an«l  prohibits  the  ]Kwliug  of  railroad  earn- 
ings.  The  statute  also  establishes  au  interstate  com. 
merce  commission  of  five  nienil>ers  appointed  by  the 
President  of  the  United  States ;  it  is  the  duty  of  this 
botly  to  supervise  the  operation  of  the  act,  but  it  has 
no  j)ower  of  itself  t'>  punish  violations  of  its  provisions 
or  to  fix  rates.   The  provisions  of  the  federal  anti-trust 
statute  of  1891  have  also  been  applied  by  the  courts 
against  the  railroails   in  regard   of  various  forms  of 
combination  that  were  presumed  to  be  in  restraint  of 
commerce  between  the  states.    In  addition  to  the  na- 
tional legislation  most  of  the  states  have  passed  laws 
intended  to  prevent  discrimination  in  freight  and  pas- 
senger rates,  and   to  hinder  undue  combination.   In 
most  states  also  railroad  commissions  are  established, 
in  some  cases  with  duties  that  are  mainly  advisory  and 
statistical,  but  in  others  with  coercive  powers  for  the 
making  and  enforcing  of  rates.    The  Massachusetts 
board  of  railroad  commissioners  is  an  example  of  the 
first  class ;  it  supervises  the     juration  of  the  law  in 
reference  to  the  issue  of  securities,  receives  reports 
from  the  railroad  companies,  and  has  an  advisory  jjower 
in  regard  to  freight  and  passenger  rates.    In  practice 
its  recommendations  have  great  force,  and  are  usually 
followed  by  the  roads  themselves  or  embodied  in  stat- 
utes of  the  legislature.   On  the  other  hand,  commissions 
such  as  those  of  Minnesota  and  of  Illinois  are  given 
l)()wer  to  directly  fix  rates  for  traffic  within  the  state.' 

'  It  has  Ixjeii  laiil  down  by  the  United  States  Saprftuc  Court  that 
an  exercise  of  power  of  this  kind  —  the  uiakinf;  of  a  rate  by  the  com- 
mission itself  —  must  be  subject  to  revision  in  the  courU. 


THE  MODERN  STATE 


403 


In  the  United  Kingdom  there  i»  al»o  a  commission  for 
the  supervision  of  the  o|)eration  of  ruilrouds,  estal*- 
lirthed  in  187:i,  and  rendered  permanent  by  an  act  of 
Parliament  of  1888.  The  schedule  of  maximum  rates 
of  each  railroad  is  sjibjeut  to  the  approval  of  the  Koanl 
of  Trade.  Pooling  is  not  prohiliitod,  but  discrimination 
is  against  the  law. 

&  Government  Interference  on  Behalf  of  the 
Working  Class;  Factory  Laws.  State  Insurance, 
and  Pensions.  The  attitude  of  motleni  governments 
towards  the  laboring  class  is  in  many  res|)ects  no  longer 
one  of  unqualified  individualism.  The  general  recog- 
nition of  the  idea  of  social  solidarity  and  of  aggre- 
gate social  duties  towanls  the  workers  and  the  poorer 
members  of  the  community  has  profoundly  influenced 
the  legislation  of  our  day.  The  original  factory  acts 
adopted  in  England,  to  which  reference  has  been  al- 
ready made,  have  been  imitated  in  all  the  great  indus- 
trial coun*"'e8,  and  expanded  into  an  elaborate  code 
designed  to  protect  the  wage-earner  against  the  rigor 
of  unrestrained  competition.  Legislation  of  this  kind 
in  the  United  States  falls  under  state  and  not  under 
federal  jurisdiction.  There  are  still  many  states  of  the 
Union  in  which,  factory  industry  being  but  little  de- 
velopeil,  no  protective  statutes  have  been  passed.  But 
in  Massachusetts,  New  York,  Pennsylvania,  Ohio,  In- 
diana, Illinois,  and  all  the  great  manufacturing  states, 
factory  legislation  of  a  thorough -going  character  has 
been  adopted.  The  factory  acts  of  these  states  prohibit 
working  people  from  being  em])loyed  under  conditions 
dangerous  to  health  or  life.  They  contain  provisions 
for  fire-escapes,  prevention  of  explosions,  fencing  of 


404 


THE  PROVINCE  OF  GOVERNMENT 


it»! 


machinery,  ventilation,  etc.,  and  provide  for  the  ap- 
])oiutmeut  of  inspectors  to  supervise  the  operation  of 
the  acts.  The  hours  of  labor  in  the  case  of  women  and 
young  persons  are  also  limited  by  law.  The  labor  of 
adult  women  is  restricted  in  all  the  New  England 
states  (except  Vermont)  and  in  about  ten  other  states ; 
a  ten-hour  day  is  the  usual  limit  prescribed.  All  the 
manufacturing  states  have  IcgisLated  against  excessive 
hours  for  young  persons  (of  either  sex)  and  have  abso- 
lutely prohibited  factory  labor  for  children.  In  Massa/- 
chusetts,  New  York,  and  several  other  states  only 
children  of  at  least  fourteen  years  of  age  may  be  em- 
ployed ;  in  other  states  eniployment  is  permissible  at 
lower  ages.  In  England,  under  the  general  factory  law 
of  1901,  similar  restrictions  on  industrial  freedom  of 
contract  are  imjiosed  by  the  government,  both  the  con- 
ditions of  work  and  the  permissible  hours  for  employ- 
ment  of  women,  young  persons,  and  children  being 
made  the  subject  of  legislative  interference.  The  Ger- 
man imperial  government  adopted  in  1891  a  factory 
act  of  similar  scope.  In  the  United  States,  Great 
Britain,  and  Germany  legislation  has  not  as  yet  limited 
the  hours  of  employment  of  adult  males ;  but  in  France 
and  in  Austria  the  law  regulates  the  number  of  hours 
that  even  adult  males  may  be  employed  in  factory 
labor,  eleven  hours  a  day  being  assigned  as  the  limit 
in  Austria,  and  twelve  in  France. 

The  altered  attitude  of  the  state  towards  the  working 
class  is  seen  also  in  the  systems  of  compulsory  insu- 
rance and  old-age  pensions,  now  operative  in  various 
countries  of  continental  Europe,  and  in  certain  Austra- 
lasian colonies.   In  Germany  an  imperial  law  of  June 


THE  MODERN  STATE 


40S 


15,  1883,  provides  for  compulsory  insurance  against 
illness  for  all  working  peoi)le  whose  wages  do  not  ex- 
ceed $476  a  year,  the  expenses  of  the  insurance  being 
imposed  jointly  on  working  people  and  employers,  the 
former  paying  two  thirds,  the  latter  one  third  of  the 
cost.  A  similar  law  of  July  6,  1884,  prescribes  com- 
pulsory insurance  against  accidents.  In  each  of  these 
cases  the  government  itself  contributes  nothing ;  but  for 
the  compulsory  old-age  pensions,  established  under  an 
imperial  statute  of  1889,  the  government  contributes 
yearly  towards  each  pension  a  fixed  sum  of  $11.90  over 
and  above  tlie  amount  accruing  from  the  past  contribu- 
tions of  the  workingiiien  and  their  emploj'ers.  France 
and  Austria  have  also  instituted  compulsory  state  in- 
surance against  accidents  (in  Austria  against  illness 
also),  and  Italy,  under  a  statute  of  1899,  has  state  in- 
surance both  against  disability  and  old  age.  The  colony 
of  New  Zealand,  by  a  law  of  1898,  established  a  system 
of  old-age  pensions  (with  a  maximum  of  X18  per  an- 
num) to  be  aceoided  by  the  government  to  persons  of 
sixty-five  years  of  age  who  had  resided  thirty-five  years 
in  the  colony,  no  previous  contribution  being  exacted 
from  the  recipient.  Persons  possessing  an  income  from 
other  sources  are  not  eligible,  or  only  eligible  as  pen- 
sioners to  the  extent  that  their  income  falls  short  of 
the  pension.  The  tendency  of  the  governments  of  the 
Australian  colonies  to  interfere  vigorously  on  behalf  of 
the  working  class  is  seen  in  the  New  Zealand  statute 
of  1894,  applying  com]>ulsory  arbitration  to  labor  dis- 
putes, and  in  a  similar  statute  of  South  Australia 
en.icted  in  tiie  same  year. 

Even  the  most  extreme  individualiets  admitted  that 


406 


THE  PROVINCE  OF  GOVERNMENT 


^^ 


?■- 


the  protection  which  it  was  the  primary  duty  of  the 
state  to  afford  to  the  citizen  did  not  merely  include 
safeguards  against  physical  violence  and  forcible  rob- 
bery. Protection  of  an  indirect  character,  intended  to 
prevent  fraud  or  culpable  negligence,  was  admitted  to 
be  within  the  proper  sjihere  of  the  state  action.  But 
in  the  course  of  the  nineteenth  century  the  category  of 
legislation  of  an  indirectly  protective  character  has  been 
enormously  expanded.  Such  familiar  examples  as  adul- 
teration acts  in  reference  to  food,  acts  in  reference  to 
the  inspection  of  steamboats  and  buildings,  the  grant- 
ing of  certificates  to  engineers,  druggists,  etc.,  will  at 
once  suggest  themselves  in  this  connection.  Prohibi- 
tion acts  in  restraint  of  the  manufacture  or  sale  of  in- 
toxicating liquors,  acts  in  restraint  of  public  gambling, 
etc.,  represent  the  same  legislative  principle  carried  to 
a  further  degree.  In  practice,  the  line  is  extremely 
difficult  to  draw  between  protective  legislation  —  whose 
intention  is  to  guarantee  the  individual  against  exter- 
nal harm  and  to  prevent  him  from  harming  others 
—  and  paternal  legislation,  whose  object  is  to  compel 
him  in  a  positive  direction  for  his  own  good.  The  atti- 
tude of  most  modern  government?  is  not  clearly  defined 
in  this  respect ;  but  there  is  a  large  amount  of  mod- 
ern legislation  which  is  practically  of  a  paternal  char- 
acter. 

6.  Municipal  Control.  Mention  may  be  made  in 
conclusion  of  the  wide  extension  of  state  activity  seen 
in  the  sphere  of  modern  municipal  control.  Under  pre- 
sent conditions  the  supply  of  water  and  light  to  towns 
and  cities  and  the  arrangement  for  interurban  trans- 
portation, telephone  communication,  etc.,  offer  problems 


♦il 


THE  MODERN  STATE 


407 


of  a  peculiar  character.  To  a  great  extent  these  ser- 
vices are  in  their  nature  monopolies ;  they  must  be 
under  a  single  control,  and  cannot,  or  at  any  rate  can 
only  at  an  economic  loss,  be  performed  for  the  com- 
munity by  rival  purveyors.  Separate  telephone  systems, 
separate  gas  and  water  companies,  with  parallel  pipes, 
separate  car  lines  upon  the  same  streets,  are  plainly 
iir  "ticable.  On  the  other  hand,  where  these  enter- 
1        «  >laced  unreservedly  in  private  hands,  the 

priucr^iri  o£  monopoly  price,  as  already  explained,  as- 
serts itself  to  the  detriment  of  the  general  public.  It  is 
necessary,  therefore,  either  that  the  public  authorities 
should  themselves  directly  perform  these  services  for 
the  community,  or  that  the  grant  of  privileges  accorded 
to  a  monopoly  company  should  be  accompanied  by  spe- 
cial restrictions  and  special  regulation  of  the  prices 
to  be  charged.  A  brief  summary  of  the  present  extent 
of  municipal  ownership  may  serve  to  show  how  greatly 
the  functions  of  the  local  organs  of  government  have 
been  expanded  under  recent  conditions.  The  control 
of  waterworks  is  the  most  universal  of  all  municipal 
activities.  Of  the  thirty-eight  cities  of  the  United 
States  having,  under  the  census  of  1900,  a  population 
over  one  hundred  thousand,  all  except  eight  owned 
their  own  waterworks  in  1903.  In  this  majority  are 
included  the  cities  of  New  York,  Chicago,  Philadelphia, 
and  Boston.  In  Canada  more  than  three  quarters  of 
the  towns  and  cities  (including  Montreal  and  Toronto) 
own  their  waterworks.  In  the  United  Kingdom  the 
municipal  ownership  of  waterworks  is  almost  universal, 
and  in  the  continental  cities  uf  Europe  it  is  the  usual 
rule.    Very  few  gas  works  in  the  United  States  are 


408 


THE  PROVINCE  OF  GOVERNMENT 


under  municipal  operation,  but  the  larger  British  cities 
(except  London,  Liverpool,  and  Dublin)  and  most  Ger- 
man cities  operate  their  own  gas  plants.  In  the  case 
of  street  railways  municipal  ownership  is  very  rare  in 
America,  but  has  been  iwlopted  in  about  forty  places 
in  Great  Britain,  including  London  and  Manchester. 
Municijjal  electric-lighting  plants  are  extremely  com- 
mon in  the  United  States,  being  found  in  Chicago, 
Detroit,  and  elsewhere,  though  ownership  and  opera- 
tion by  private  companies  is  much  more  usual.  In  the 
United  Kingdom,  on  the  other  hand,  the  majority  of 
electric-lighting  plants  are  operated  by  the  municipali- 
ties. Telephone  service  is  rarely  found  under  munici- 
pal management,  though  in  some  cases,  as  in  Japan 
and  in  Australia,  it  is  directly  conducted  by  the  gen- 
eral government.  Rarer  examples  of  collective  activity 
are  seen  in  municipal  house-building,  sale  of  electric 
power,  etc.  It  is,  of  course,  impossible  to  enter  here 
into  the  discussion  of  the  economic  advantages  or  dis- 
advantages of  municipal  ownership.  Reference  is  only 
made  to  it  in  this  connection  to  illustrate  the  greatly 
widened  sphere  of  state  control  characteristic  of  the 
present  era.* 

READINGS  SUGGESTED 
Leroy-Beaulieu,  P.,  The  Modern  State  (translation,  1891),  books 

i,  ii. 
Hol>8on,  .T.,  Evolution  of  Mo<lern  Capitalism,  chaps,  iii,  iv,  v. 
.fenka,  J.  W.,  The  Trust  Problem  (IWH),  chaps,  iv,  x,  xi. 
Johnson,  E.,  American   Railway   Transportation    (1903),  chap. 

xxix. 

'  For  further  dctnils  bpp  New  Tntrrnutinnnl  Knryrlnprdia,  article. 
"  Municipal  Ownership ; "  Etport  of  Uniteil  Stales  Commissioner  of  Labor, 
1900  i  Darwin,  Municipal  Trade  (London,  l*JO:i). 


THE  MODERN  STATE 


409 


FURTHER  AUTHORITIES 

Von  Ilalle,  E.,  Trusts  (1900). 

Taussig,  F.  W.,  Tariff  History  of  tlic  United  States  (5th  edition, 
1901). 

Ashley,  P.,  Modern  Tariff  History  (1901). 

Dawson,  VV.  H.,  Protection  in  Germany  (1904). 

Ely,  R.,  Monopolies  and  Trusts  (1900). 

Report  of  U.  S.  Industrial  Coniniissioii  (1900-0'J). 

Hoffman,  F.  S.,  The  Sphere  of  the  State  (3d  edition,  1898), 

Remis,  Municipal  Monopolies  (1899). 

Carey,  Municipal  Ownership  of  Natural  Monopolies  (IflOO). 

Report  of  U.  S.  Commissioner  of  Labor :  Water,  Gas  and  Electric 
Light  Plants  under  Private  and  Puhlic  Ownership  (1899). 

Willoughby,  W.,  Workingmen's  Insurance  (1898). 

New  Zealand  Year  Book  (ainnial). 

Bulletin  of  U.  S.  Bureau  of  Labor.  Governmeut  Industrial  Arbi- 
tration (1905). 

Sidgwick,  H.,  PrinciD'"    >f  Political  Economy  (1883),  book  iii. 


I 
I 

■  s 

5 


1^\ 


INDEX 


AcH.r,AN  League,  235. 

Adniinistrativt!  courts,  216, 217; 
origin  in  France,  217. 

Administrative  law:  in  refer- 
once  to  separation  of  powers, 
151;  nature  of,  210;  opera- 
tion in  France,  217. 

Agreement  of  tlie  People,  128. 

Alabama  claims,  105;  consti- 
tution of,  132. 

Alexander  VI  (Pop-),  104. 

Amendment  of  Constitution, 
130,  131;    Switzerland,  130. 

American  llevolution,  v.  Revo- 
lution, American. 

Analytical  school,  .58,  59. 

Anson,  Sir  W.,  on  legisative 
procedure,  150. 

Anti-federalists,  338. 

Arbitration,  Int."rnational,  v. 
International  Arbitration. 

Aristotle,  25;  on  patriarchal 
theory,  43;  cycle  theory,  40; 
cycle  of  government,  110. 

Arrondisscment,  290. 

Assessment,  r.  Local  Taxation, 
Property  Tax. 

Austin,  view  of  sovereignty,  54; 
on  International  Law,_  102. 

Australia,  federal  powers  in,  252 ; 
constitution  of,  252,  253. 

Australian  Constitution,  pro- 
visions for  deadlock,  174. 

Bagehot,  W.,  on  separation  of 
powers,  148;  on  legislative 
procedure,  155. 

Ballot,  double.  .348. 

Hastiat,  F..  .304. 

Bellamy,  K.,  377. 

Bentham,  Jeremy,  criticism  of 
social  contract,  31. 

Bicameral  svstem,  159  et  seq.; 


Lecky  on,  160 ;  prevalrnca 
of,  100;    reasons  for,  101. 

Blaekniar,  Professor,  on  Span- 
ish colonial  .system,  203,  204. 

Blackstone  on  separation  of 
pow<  rs,  143. 

Blair,  Ciianci  llor,  213. 

Bluntaciili,  J.  K.,  criticism  cf 
social  contract,  31  ;  view 
of  sf.v(i(  igntv,  .'».'»;  cla-ssili- 
cation  of  .'tut.-s,  110,  117. 

Bo.stoii.  govi  rnniont  of,  .307. 

Bouriiiot,  Sir  J.,  on  treaty- 
making  power,  281. 

British  North  America  Act, 
240. 

Bryce,  J.,  on  sovereignty,  62; 
on  legislative  procedure,  I.")©. 

Bundfsrath,  German,  107;  pow- 
ers of,  171;  Switzerland,  18.3. 

Burgess,  on  sovereignty,  53; 
on  federal  states,  237,  238. 

Cabinet,  British,  144,  145;  de- 
scription of,  148;  its  evolu- 
tion, 192-194. 

Cabinet  government,  distin- 
guished. 118, 122, 191  etsfQQ.; 
in  France,  195;  in  Italy,  197. 

Canada,  senate  of,  100;  power 
of  courts,  214;  federal  pow- 
ers in,  249. 

Caracalla,  18. 

Carlyle,  T.,  on  doctrine  of 
laissez  faire,  308. 

Casa  de  Contratacion,  204. 

City  Government,  U.  S.,  306. 

Civil  Service  Act,  204. 

Civil  Service,  British,  200,  201 ; 
U.  S.,  202,  203. 

Chamber  of  Deupties,  parties 
in.  351. 

Charlemagne,  94. 


412 


INDEX 


;$l 


/ 


Clmrtors,  colonial,  126. 

Church,  relation  to  Holy  Ro- 
man Empire,  94. 

Closure  in  House  of  Commons, 
1.59;    in  U.  S.  Senate,  15«. 

Colonial  G'^vemment,  v.  Col- 
onies. 

Colonial  policy,  Dritish,  20.') ; 
Hriti.sh  in  nineteenth  century, 
271  et  seqQ.;  French,  265. 

Colonics,  government  of,  258 
el  seqq.;  area  of,  2.58;  methods 
of  acquisition,  2.59,  260;  of 
ancient  world,  201 ;  in  Amer- 
ica, 264  el  BCQQ.;  self-pov- 
emini^,  272  et  segq.;  future 
of  Hritish,  273  et  seqq.;  pres- 
ent British  system,  276.  277; 
crown,  277  ;  representative, 
279;  responsible,  279;  rela- 
tion of  British  to  home  gov- 
ernment, 280;  recent  colo- 
nial expansion,  285;  Franco, 
285,  286;  Germany,  286. 
287;  U.  S.,  887. 

Comitia  Tributa,  175. 

Committee  of  Public  Safety, 
18.3. 

Common  faith,  not  a  requisite, 
19. 

Common  law,  61. 

Commons,  House  of,  procedure, 
1.56,  159;  closure,  159;  con- 
stitutional powers  of,  169, 
172. 

Commune,  299. 

Compact,  governmental,  27. 

Confederacy,  Southern,  237. 

Confederation,  Articles  of,  236, 
246. 

Congn'ss,  Continental,  236 ; 
powers  of  U.  S.,  247,  248. 

Constantine,  94. 

Constitution,  121  et  seqq.;  writ- 
ten, 123-126;  relation  to 
courts  of  law,  130,  131; 
amendment  of,  130,  131; 
scope  of.  122  v(  spqq.;  of  Ala- 
bama, 1.32;  of  Switzerland, 
133;  made  by  convention, 
136;  provisions  in  state  con- 
stitutions for  direct  legisla- 


tion, 179;  r.  S.,  interpreta- 
tion of  bv  the  courts,  2.55. 

Constitutional  law,  133,  134. 

Constitutional  monarchy,  185, 
186. 

'•Contrnt  Social,"  29. 

Convention,  342. 

Council  of  Four  Hundred,  175. 

County,  r.  .S.,  .302  )t  Kiqq. 

Courts  of  law,  pow«r  to  inter- 
pret constitution,  213. 

Crown  colonies,  277. 

Cycle,  the  Aristotelian,  46. 

Dante,  on  the  papacy  and  em- 
pire, 94. 

Declaration  of  Paris,  98. 

Declaration  of  the  Uights  of 
Man,  74. 

Democrats,  339,  340. 

Democracv,  progressive  growth 
of,  50,  61. 

Department,  French,  299,  312. 

Departments  of  executive  gov- 
ernments, 199  et  seqq.;  table 
of,  206. 

Dicey,  A.  V.,  on  sovereignty, 
64,65. 

Dicev,  E.,  definition  of  con- 
stitution, 121;  on  respon- 
sibility of  executive  officers, 
211. 

Direct  legislation,  174  et  seqq. 

Direct  nomination,  348,  349. 

Divine  origin  of  state,  34. 

Disraeli,  on  colonial  policy,  274. 

Ecclesia,  175. 

Education  Act,  England,  310. 

Electorate,  207  el  seqq. 

Embargo,  256. 

England,  colonial  policy  of, 
265;  local  government  in. 
308;  local  government  in, 
308  el  srqq. 

Erfurt,  congress  of,  380. 

E.sprit  des  Lois,  143. 

Executive  (branch  of  govern- 
ment), 142;  the,  181  et  seqq.; 
plural  executives.  183;  htate 
governments  of  U.  S.,  198; 


INDEX 


413 


hereditary,  184-186;  elected,  | 
186  el  neqq.;  responsibility  to 
the  courts,  211. 
Executive  power,  distinguished, 
141. 

Factory  act'*,  368,  369. 

Factory  laws  modem,  403, 
4()4. 

Federal  government,  distin- 
guished, 118,  233  et  Kfqq., 
Greek  federation,  235;  classi- 
fication of,  239;  distinguished 
from  confederacy,  239;  sov- 
ereignty in,  240;  distribution 
of  federal  power,  244-246; 
U.  S.,  247-249;  Canada,  249; 
German  Empire,  250. 

Federalist,  on  separation  of 
powers,  146. 

Federalists,  338. 

Filmer,  Sir  Robert,  35. 

Finance  Bill  of  1909,  173. 

Finley,  Sir  Robert,  on  inter- 
national arbitration,  108. 

Fiske,  J.,  on  separation  of 
powers,  153. 

Force,  theory  of,  35. 

France,  cabinet  government 
in,  195;  colonial  policy  of, 
265;  recent  colonial  cxpan- 
eion  of,  285,  286;  local  gov- 
ernment in,  311,  312. 

Free  trade,  366;  critique  of,  388. 

Freeman,  W.,  on  Acha>an 
league,  235. 

French  Revolution,  illustrating 
cycle  of  government,  114. 

Fundamental  Orders  of  Con- 
necticut, 127. 

Fundamental  Statute  of  Italv , 
129. 

General  council,  312. 

German  Confederation,  237, 
246. 

German  Empire,  federal  pow- 
ers in,  250. 

Germany,  ministers,  196;  court .s 
in,  215;  federal  units  of,  243; 
recent  colonial  expansion, 
286,  287. 


Gierke,  on  organic  theory,  86. 

Gotha,  congress  of,  380. 

Government,  distinguished 

from  state,  society,  and  na- 
tion, 16  rl  seqq.;  province  of, 
357  ft  xrqq. 

Governmental  compact,  27. 

Greece,  colonies  of,  261. 

Greeks,  international  relations 
of,  92. 

Gregory  VII.  36. 

Grotiu.-*,  on  international  law, 
95,  96. 

Group  8V.<4tem,  of  party  gov- 
ernment, V*i,  351 . 

Gumplowitz,  on  organic  theory, 
86. 

Hague  tribunal,  106,  107. 

Hallcr,  L.  v.,  on  origin  of 
government,  38,  39. 

Hare,  T.,  on  representation  of 
minorities,  229. 

Hawaii,  287. 

Hereditarv  executives,  184. 

Hobbes,  "f .,  27;  on  external  re- 
lations of  states,  89. 

Holland,  T.,  14. 

Home  Rule  Bill.  159. 

Holy  Roman  f^mpire,  18. 

Hou.se  of  Commons,  v.  Com- 
mons, House  of. 

House  of  Lords,  v.  Lords,  Hv  use 
of. 

Hovas,  45. 

Humboldt.  W.  von,  on  scope 
of  government,  360,  361. 

Hume,  David,  criticism  of 
social  contract,  31. 

Hungarv,  nature  of  constitu- 
tion, 122,  123. 

India,  government  of,  282. 
Individualism,  3.'>7  et  xrqq.;    in 

IT.  S.,  361 ;  J.  S.  Mill  on,  362. 
Industrial  commission,  on  pro- 

pertv  tax,  .329. 
Industrial  revolution,  363. 
Illiliativj',  174  et  tieqq. 
Instrument  of  govemmPTit,  128. 
Insurance,  state,  404,  405. 
International   arbitration,  104 


>ia 


414 


INDEX 


et  xeqq.  ;  exanipUs  of,    105; 

In  iitiis  rcHixi'tiiiK,  U)7>  108. 
Intpmationul  law,  !K),  f(  «♦'/</.;, 

definition  of.  00.  01;  moiU  ni 

period  of,  95;    Hcope  of,  WJ\ 

of  p«-iicc,  100;    propriety  of 

the  term,  100. 
International    reLitions,    divi- 1 

sion  into  three  p  riods,  C  i . 
Interptllation,  S.*)!. 
Imperial  federation,  283-285. 
Iron  Law  of  Wagis,  S73. 
Italy,  senate  of,  166;   cabinet 

aytstem  of,  197. 

Jackson,  Andrew,  203,  339. 
J<  llinek.  G.,  definition  of  liis- 

tory,  8;  c)as8ification  of  fede- 
ration, 239. 
Jrnka,  E.,on  patriarchal  theory, 

44;    mi'itary   origin   of  tne 

state,  48;  on  government  of 

Victoria,  174. 
Johnston,  President,  203. 
Judges,  tenure  of  British,  200; 

tenure  of  U.S.,  209;  France. 

209;   Prussia.  209. 
Judicial    power,  distinguished, 

141. 
Judiciarv,207etsfOT.:  functions 

of,  207,  208. 
Jus  Feciale,  93. 
Jus  Gentium,  93. 
Justice  of  the  Peace,  England, 

308,  309. 

Kant,  view  on  social  contract, 
33;  on  individualism,  360. 

Lainnez  jc.ire,  doctrine  of,  363; 
Cariyle  on,  ''M,  309. 

I.andesgcmeinde,  175. 

Lassalle,  P.,  380. 

Law,  nature  of,  53;  sources 
of,  62;  internal  onal,  r.  In- 
ternational Law;  of  nattire, 
96  constitutional,  v.  Con- 
Pti  ■■  "'onal  T,aw;  administr.-i- 
tive,  r.  Administrative  Law. 

Lawrence,  T.  J.,  on  interna- 
tional law,  91. 

Lecky,   on   bicameral   system, 


IfiO;  on  colonial  policy,  208, 
270.  .    . 

lygibiativp       power,       distin- 
guished, 141;  Story  on,  142. 
L(gi^lature,  164  rl  nqq.;  num- 
Wr  of  nunibtrs,  155;    proce- 
dure, 155. 

Leviatiian,  27. 

Lilxrty,  71,  ct»tqq.;  difTrrrnt 
irea'nings  of,  72;  natural,  72; 
civil,  74;  ct.nstitutionaI,  76; 
national,  76;  <n  the  U.  S., 
77  ;  in  Great  Britain,  78  ;  iu 
France,  78. 

J  icensc  taxes,  330. 

..ielM-r,  F.,  on  liberty,  73. 

Local  government,  292  et  feqq. ; 
di^ti^gui8hed  from  central, 
293-295;  arras  of,  296  tt 
nrqq.;  I'nited  States,  298; 
France,  299;  Saxon,  300; 
local  autonomy,  301  et  seqq. ; 
England,  308;  Saxon,  310; 
P'rance,  311,  312;  Prussia, 
315. 

Local  taxation,  V.  S.,  316  et 
seqq. ;  England,  321-.323  ; 
France.  323-325;  Prussia, 
326,  327;  reform  of,  328  et 
iifqq. 

Locke.  J.,  27. 

London,  government  of,  311. 

Lords,  House  of,  "British,  163, 
164;  powers  o'  70;  consti- 
tutional powe*      .70,172. 

Lords,  House  of.     russian,  164. 

Lowell,  L.,  oi  separation  of 
powers,  152,  153;  on  Swiss 
federal  government,  251 . 

Louisiana  purchase,  256,  260. 

Madison.  President,  203. 
Maine,  Sir  IL,  criticism  of  Aus- 

tinian  School,  58  et  seqq. 
M.ilthus.  R..  ^M. 
Marshall.  Chief- Jastice,  99;  on 

implied  powers,  256. 
M.irx.  theory  of  origin  of  the 

.'-tate,  4S;    doctrines  of,  372. 
Massachusetts,  charter  of,  120, 

265. 
Matriarchal  theory,  42. 


INDEX 


416 


May,  Sir  T.  Enkine,  Lord  Fam- 

iHirougb,  on  origin  of  parties, 

336. 
Mayflower,  32. 
Mayflower  Covenant,  127. 
M'Kwhnie,  un  Hovereignty,  64; 

on  organic  theory,  82. 
MnLennan,  J.  F.,on  matriarchal 

theory,  43. 
Mill,  J.  8.,  on  women's  rights, 

226. 
Minorities,  representations  of, 

228  et  ieq<i. 
Mohl,  classification  of  states, 

117. 
Montesquieu,   classification   of 

states,  116;  on  separation  of 

powers,  143. 
Morris,  Uouvemeur,  on  Consti- 
tuent Assembly,  ISA. 
Municipal  ownership,  406-408. 

Nation, distinguishedfrom  state, 
society,  and  government,  16 
et  Kqq. 

National  convention,  343. 

Nature,  state  of,  23,  30;  law  of, 
96. 

Navigation  acts,  266;  repeal  of, 
365. 

Neutral  commerce,  97. 

New  England  federation,  244. 

New  York,  government  of, 
307. 

Nomination  v.  Direct  Nomina- 
tion. 

Octroi,  324,  326. 

Odgers,   Dr.  W.,  on  areas  of 

local  government  in  England, 

300. 
Origins    of    state,    22;    divine 

origin  of  state,  34. 

Paine,  T.,  on  hereditary  princi- 
ple, 163. 

Papacy,  relation  to  Holy  Ro- 
man Empire,  94. 

Paris,  treaty  of,  17fi3,  97. 

ParliamentilBritish;  sovereign- 
ty of,  67,  eC;  supremacy  of, 
212.    ' 


Parliament  Act  of  1911,  174. 

Parliunicntnry  government,  dis- 
tinguished, 1 18,  191  tt  neqq. 

Parish,  England,  310. 

Parties,  political,  organization 
of  in  U.  H.,  340  et  iieqq. ;  y. 
also  Purtv  (iovernnient  in 
Ureat  Urituin,  348,  35:i; 
France,  afil;  (iermuny,  S.Vi. 

Party  government,  li'2'2  <(  »eqi].  ; 
Goldwin  Smith  on,  334;  ru- 
tional  basis  of,  33;j,  'M4; 
origins  in  England,  336;  ori- 
gins in  U.  S.,  338;  continen- 
tal Europe,  3S0,  351. 

Patriarca,  35. 

Patriarchal  theory,  42. 

Peace  conference,  106,  107. 

Peerage,  of  United  Kingdom, 
163;  Iri.sh,  164;  Scotch,  164. 

Pensions,  old  age,  404,  405. 

Philippines,  cession  of,  260; 
government  of,  288-290. 

Plantation  covenant,  32,  127. 

Plato,  25;  cycle  theory,  47. 

Political  science,  definition  of, 
3;  scope  of,  4,  5;  relation  to 
history,  6,  7;  relation  to  polit- 
ical economy,  8. 

Political  sovereignty,  criticism 
of,  67  et  geqq. 

Pollock,  Sir  I< .,  on  development 
of  law,  103. 

Polybius,  on  separation  of 
powers,  143. 

Populist  party,  favors  direct 
legislation,  180. 

Porto  Rico,  288. 

Portugal,  colonial  expansion  of, 
263. 

Prefect,  312,  313. 

President  U.  S.,  187;  term  of 
office,  190. 

President,  France,  189,  191. 

Presidential  government,  191 
et  aeqq. ;  in  Italy,  197. 

Primary,  342;  primary  law, 
346  347. 

Property  tax,  317-319. 

Proportional  Representation, 
230-232. 

Protection,   theory  of,  389   el 


4M 


INDEX 


teqq.;  iiim  lern  protective  tcr- 

iffs,  303,  ■;'M. 
Pruudhon,  .'>;«;. 
Pruwia,  mini.ii'  r-,  igO;  method 

of  votit  -  i:'        1;  local  gvv- 

emieni    n,  I'l.i 


Qucbci  .\ 


iV 


Radicah.  ta,  a?  i. 

Kailroad     Ltp-^l  >ti<<n,    304    et 

m!(fq.;  ij!<s,  ..•  !i    100;    cf m- 

niiaiun'iH,  'T. 
RiH;all,  i8«!' .(  mil;. 
Rt'foreri'li.M,  i7'i  t.  "<  ,■, 
Heforui   "•  .■*,  A(  •        '"^ '  ,  ^423; 

A<'t  of  ■'  C,  2*- 
Reichittiig,   )jrti«i  i .  .< 
Keprwienu'i.jn   of     n       ''><)ple 

Act,  22L 
Kepresentittive  colonieti,  279. 
Republic  iiiH,  339,  34U. 
Reopotuillilt!   govcniiiient,    <iiH- 

tinguixhod,    IIH;    in    Brititifa 

cok>Dieti,  273. 
Revolution,   American,  208  d 

Ricardo,  D.,  304. 

"  RightM  of  Man,"  74,  163. 

Ritchie,  D.  U.,  on  sovereignty, 

04,  68. 
Rogera,    Sir     F.,    on    colonial 

policy,  273. 
RousHeau,  J.  J.,  27,  73;  clasaifi- 

cation  of  states,  1 16. 

Salisbury,  Lord,  on  interna- 
tional law,  100. 

Sohaffle,  A.,  on  organic  theory, 
82  et  iteqq.;  criticism  of  or- 
ganic theory,  86,  87. 

School  district,  England,  309, 
310. 

Secretary  of  State,  U.  S.,  199. 

Seeley,  J.  R.,  7. 

Separation  of  powers,  influ- 
ence in  America,  145;  in 
Massachusetts  constitution, 
145;  in  federal  Constitution 
of  U.  S.,  146;  influence  in 
France,  147;  adopted  by 
Constituent  Aatembly,  147; 


in  French  conatitution  of 
1795,  147;  in  existing  gov- 
ernments, 148;  analyMid  by 
bagfhol,  148;  absent  in 
French  goveniment,  149;  ali- 
senl  in  Italian  government, 
149;  criticism  of,  151;  pro- 
ci-dure,  irifj. 

Self-government,  granteii  to 
briiinh  colonies,  272,  279; 
local,  309. 

Senate,  Canada,  166;  Italy, 
m\.  Culm,  167;  Brazil,  167; 
French,  UW;  powers  of  U.  8., 
170;  powers  of  Canadian, 
171;  relation  to  cabinet  in 
Frun<-e,  19r\ 

Smith,  Adam,  364. 

Smith,  Uoldwin,  on  direct  legis- 
lation, 176;  on  U.  S.  Con- 
stitution, 241. 

Social  contract,  22  et  seqq. 

Social  Ueniocrat.*!,  f.  Socialism. 

Socialism,  371  tt  neqq.;  pro- 
gramme of,  375;  in  Germany, 
378  et  stqq.;  France,  382; 
England,  382,  383;  U.  S.,  383. 

Socialist  party  in  Prussia,  231. 

Society,  distinguished  from 
state,  government,  and  na- 
tion, 16  et  siqq. 

South  Africa,  281,  282. 

Sovereignty,  52  et  aeqq.;  loca- 
tion of,  56  el  neqq.;  in  British 
Empire,  56,  57;  m  U.  S.,  57, 
58;  in  France,  58;  political, 
63:  liiiiil  or  divided,  69;  in 
federal  government,  240. 

Spain,  cuionial  system,  of,  262, 
263. 

Sparta,  kings  ofj  183. 

Spencer,  H.,  ongin  of  govern- 
ment, 36;  an  organic  theory, 
82  et  aeqq.;  on  scope  of  govern- 
ment, 366;  criticism  of  organic 
theory,  86,  87. 

Spoils  System,  203. 

State^  analysis  of,  12,  13;  defi- 
nition of,  15;  diatinguiahed 
from  society,  government, 
and  nation,  16  et  $eqq.;  ideal, 
20;  origin  of,  22;  of  nature. 


INUKX 


417 


23,  30;  (liyino  orif(in  of,  34; 
extt-riiul  aripi-ct  uf,  SM  it  mqif.; 
organic  tlutiry  of,  71»;  forni  of, 
110  «(  arvy.;  Ariittotle'H  cliu*- 
■ification,  110,  111;  tul)lt>  of 
cImMitirutiun,  120;  deHputif, 
1 19;  (Icniorrulir,  1  ly;  iiiodeni 
fuiirtioru)  of,  :{.S<(  H  mqq. 

Stephen,  8ir  Jhuim,  on  oover- 
eignty,  01. 

Story,  on  lef(iHltttive  power,  142. 

SuffraKe,  218  W  »tqq.;  univemal, 
21K,  21M;  BritLsh.  219;  in 
Revolutionary  Franco,  229; 
French,  221;  German,  221; 
U.  S.,  221;  woman,  222,  22.'), 
226;  neitro.  227. 

Switzerlaml,  constitution  of, 
133;  direct  le|(iHlation  in,  177, 
178;  courtM  m,  215;  history 
of  itfl  federation,  235;  em  a 
confederacy,  241;  federal 
powem  in,  250,  2.*1. 

TarifT,  colonial,  280,  281;  in- 
sular tariff  question,  290. 

Tasmania,  system  of  voting  in, 
231. 

Taxation,  r  Local  Taxation, 
Property  Tax,  etc. 

Theory  of  force,  36. 

Tories,  337. 

Town  meeting.  178,  302,  303, 
305. 


Towns,  government  of,  v.  City. 
Township,  U.  S.,  302  rt  ttqq. 
Truiun,  94. 

Tn'utiw  on  goveroment,  29. 
Treaty  of  \V  ashington,  98. 
TruHt  IfgiHlatiou,  394  et  uqq. 

Unicameral  legislatures,  160. 

I'nit  Kule,  343. 

Unitary  government,  distin- 
guiii|ie<l,  118. 

United  States,  federal  ijowers 
in,  247-249;  dcpcnfienries, 
287;  Iwal  govenunent  in, 
296;  local  taxation  in,  316. 

Upper  houses  of  legislatures,  162 
t<  »eqq. 

Uri,  177. 

Utnn  ht,  treaty  of,  97. 

Vote,  r.  .Suffrage. 

Wages,  Iron  Law  of,  373. 

Walker,  on  Jug  Genlium,  93. 

Washington,  treaty  of,  98. 

Westphalia,  peace  of ,  91 ,  92, 95. 

Westphalia,  treaty  of,  236. 

Whigs,  British,  337;  U.  S.,  3.19. 

Wilson,  W.,  on  nature  of  law, 
(J3;  on  cycle  of  government, 
113. 

Woman  Suffrage,  r.  Suffrage. 

Woolsf'y,  T  .  definition  of  con- 
stitution, 121 


